Abston et al v. City of Merced et al, No. 1:2009cv00511 - Document 23 (E.D. Cal. 2009)
Court Description: MEMORANDUM, OPINION, and ORDER GRANTING Motion for Judgment on the Pleadings, document 16 , case management deadline set for 10/26/2009 for receipt of order consistent with instant order; order signed by Judge Oliver W. Wanger on 10/20/2009. (Rooney, M)
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Abston et al v. City of Merced et al Doc. 23 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 5 MAUREEN ABSTON, individually, and as Personal Representative of the Estate of RICHARD ABSTON; COREY ABSTON; JACY ABSTON; LINDA ABSTON, 6 Plaintiffs, 7 8 09-CV-00511-OWW-GSA MEMORANDUM DECISION RE: DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 16) v. CITY OF MERCED, et al., 9 Defendants. 10 I. INTRODUCTION 11 12 Before the court is a Rule 12(c) motion for judgment on the 13 pleadings brought by Defendant Shane Kensey, a California Highway 14 Patrol officer. 15 Plaintiffs 16 complaint for a “Violation of Civil Rights.” 17 Merced and its police officers named as defendants in this case, 18 Defendants Russ Thomas, J. Hart, B. Dalia, and N. Arellano, have 19 joined Kensey’s motion. The motion is directed at two claims asserted by Maureen, Corey, Jacy, and Linda Abston in their Defendant City of II. BACKGROUND 20 In this civil rights case, Richard Abston, a retired truck 21 22 driver, died after allegedly being tased by law enforcement. 23 Abston’s surviving spouse, Maureen, and his surviving children, 24 Corey, Jacy, and Linda, are the plaintiffs in this case. 25 following background facts are taken from their complaint, Document 26 (“Doc.”) 1, filed March 18, 2009. 27 A. 28 Mr. The Allegations In The Complaint On the morning of February 7, 2008, the California Highway 1 Dockets.Justia.com 1 Patrol dispatched information regarding a vehicle traveling the 2 wrong way on Highway 99. 3 and stopped a silver Dodge pickup truck, driven by Mr. Abston, 4 which had sideswiped several vehicles. (Doc. 1 at 3.) 5 Officer Kensey responded to the dispatch At the time of the stop, Mr. Abston had no shirt on, and 6 officer Kensey could see Mr. Abston’s torso. 7 Abston had a 9-inch scar as a result of open heart surgery about 8 two years prior. 9 chest 10 11 to treat On his sternum, Mr. Mr. Abston had a defibrillator implanted in his his history of congestive heart failure and cardiomyopathy. (Id. at 3-4.) Officer Kensey attempted to remove Mr. Abston from the stopped 12 vehicle, but Mr. Abston allegedly resisted. Purportedly, Mr. 13 Abston was sweating profusely, began “speaking of God and of 14 helping a child,” seemed agitated and appeared under the influence 15 of a drug. 16 times allegedly to get the “obviously intoxicated” Mr. Abston under 17 control and arrest him. (Id. at 4.) With a baton, Officer Kensey struck Mr. Abston several 18 Mr. Abston fled from the vehicle to a big rig stopped in the 19 middle of Highway 99 and climbed on top of the big rig’s cab. 20 Officer Kensey pursued Mr. Abston, climbed onto the cab, and then 21 struck Mr. Abston with the baton. 22 desist his resistance. 23 (also known as pepper spray) at Mr. Abston. (Id. at 4.) 24 Mr. Abston, however, did not Officer Kensey then sprayed “O.C. spray” Several defendant officers from the Merced Police Department 25 arrived on the scene, including 26 Arellano climbed onto the big rig’s cab, directed Mr. Abston to get 27 down, and then held Mr. Abston against the big rig. 28 “continued to struggle” and one officer recommended that they 2 officers Arellano and Hart. Mr. Abston 1 “simply let go” of him. For reasons unspecified, Mr. Abston was 2 released and he ran from the officers. 3 topless and intoxicated Mr. Abston and shot him in the back with a 4 stun gun, applying the electronic charge for an unknown period of 5 time. 6 in the process. 7 of God.” 8 Officer Dalia arrived and noticed Mr. Abston on the ground and 9 several officers struggling with him. On foot, Hart pursued the Mr. Abston fell to the ground face-first and broke his nose Mr. Abston continued to struggle and to “speak[] The officers repeatedly told Mr. Abston to “chill out.” While Mr. Abston lay face 10 down, several officers “continued using excessive force” on Mr. 11 Abston. (Id. at 4-6.) 12 A female C.H.P. officer arrived on the scene and placed nylon 13 restraints on Mr. Abston’s legs. At some point, Mr. Abston stopped 14 moving, his face turned purple, and he was turned onto his back. 15 Mr. Abston was “coding.” 16 unnamed police officer also attempted to locate Mr. Abston’s pulse. 17 That 18 unsuccessful, and Mr. Abston died.1 (Id. at 6.) officer then Paramedics attended to Mr. Abston. took over chest compressions, but An was 19 Allegedly, Taser International, a company that designs, tests, 20 delivers and prepares training materials for stun guns, has issued 21 two published legal warnings specifically notifying taser users to 22 avoid targeting the chest area of individuals with known histories 23 of heart attacks. 24 exhibiting 25 "Sudden In-Custody Death Syndrome” when tased. (Id. at 5.) symptoms One publication also noted that individuals of "Excited Delirium" are susceptible to 26 27 28 1 A witness with a video camera recorded significant portions of the incident. The witness turned the video into the Merced County Sheriff's Department. 3 1 B. Plaintiffs’ Claims 2 In their complaint, Plaintiffs allege that Mr. Abston "died as 3 a direct consequence of the excessive force used against him by the 4 Defendants involved in this incident." (Id. at 8.) 5 allege seven causes of action, only two of which are at issue in 6 this motion: the “First Cause of Action” and the “Fifth Cause of 7 Action.”2 Plaintiffs 8 1. First Cause of Action – 42 U.S.C. § 1983 9 The First Cause of Action alleges a civil rights violation 10 under § 1983 against officers Hart, Dalia, Arellano, and Kensey. 11 In pertinent part, Plaintiffs assert: 14 38. In doing the acts complained of herein [set forth above] and killing Plaintiffs’ decedent, RICHARD ABSTON, Defendants . . . acted under color of law to deprive plaintiffs of certain constitutionally protected rights, including, but not limited to: 15 a. 12 13 16 The right to be free from unreasonable searches and seizures, as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution. 17 No other constitutional violations are described in the First Cause 18 of Action. The First Cause of Action is asserted individually by 19 each named Plaintiff. The caption of the complaint specifies that 20 Ms. Abston is suing individually and as the personal representative 21 of Mr. Abston’s estate. Both parties agree that this claim is 22 asserted by Ms. Abston on behalf of Mr. Abston’s estate. The First 23 24 25 26 27 28 2 The causes of action in Plaintiffs’ complaint are misnumbered. Plaintiffs allege a “Fifth Cause of Action” and then allege a “Seventh Cause of Action” and an “Eighth Cause of Action” without alleging a sixth cause of action. Even though an “Eighth Cause of Action” is so denominated, there are a total of seven causes of action plead in Plaintiffs’ complaint. 4 1 Cause of Action consists of two sets of claims: (1) each individual 2 plaintiff is alleging a civil rights violation for their loss 3 arising out the alleged excessive force and death of Mr. Abston; 4 and (2) Ms. Abston, as the personal representative, is asserting a 5 claim 6 sustained. on behalf of Mr. Abston’s estate for the damages he 7 2. 8 The Fifth Cause of Action alleges a civil rights violation 9 under California Civil Code § 52.1 against officers Hart, Dalia, 10 Fifth Cause of Action – Cal. Civ. Code § 52.1 Arellano, and Kensey. Plaintiffs allege: 58. The conduct of Defendants . . . as described herein, acting in the course and scope of their employment for Defendant City and the State of California, violated California Civil Code Section 52.1, in that they interfered with Plaintiffs’ decedent’s exercise and enjoyment of his civil rights, through use of wrongful and excessive force, and failure to make any proper or reasonable arrest of said decedent. 11 12 13 14 15 59. As a direct and proximate result of Defendants’ violation of Civil Code Section 52.1, Plaintiffs’ decedent suffered [a] violation of his constitutional rights, and suffered damages as set forth herein. 16 17 19 60. Since this conduct occurred in the course and scope of their employment, Defendant CITY is therefore liable pursuant to respondeat superior. 20 This cause of action is brought on behalf of Mr. Abston’s estate. 21 C. 18 22 Defendants’ Motion Defendants advance one principal argument against the First 23 Cause of Action. Defendants argue that Plaintiffs cannot maintain 24 their own Fourth Amendment, excessive force claims under § 1983 25 because they were not subject to the alleged excessive force. 26 Defendants do not contest the Estate’s Fourth Amendment, excessive 27 force claim. 28 Plaintiffs impliedly concede that Ms. Abston cannot bring a claim As to the Fifth Cause of Action, Defendants argue and 5 1 on behalf of Mr. Abston’s estate under California Civil Code § 2 52.1, as this claim did not survive his death. 3 the motion only as to the First Cause of Action. III. 4 5 Plaintiffs oppose STANDARD OF DECISION A party may move for judgment on the pleadings after the 6 pleadings are closed. Fed. R. Civ. P. 12(c). A Rule 12(c) motion 7 challenges the legal adequacy of the opposing party's pleadings. 8 Westlands Water Dist. v. Bureau of Reclamation, 805 F.Supp. 1503, 9 1506 (E.D. Cal. 1992). In deciding a motion for judgment on the 10 pleadings, a court must “must accept all factual allegations in the 11 complaint as true and construe them in the light most favorable to 12 the non-moving party.” Fleming v. Pickard, __ F.3d __, 2009 WL 13 2871532, at *2 (9th Cir. Sept. 9, 2009). “[T]he allegations of the 14 moving party which have been denied are assumed to be false.” Hal 15 Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 16 (9th Cir. 1990). 17 “Judgment on the pleadings is properly granted when there is 18 no issue of material fact in dispute, and the moving party is 19 entitled to judgment as a matter of law.” Fleming, 2009 WL 2871532 20 at *2. 21 "goes beyond the pleadings to resolve an issue; such a proceeding 22 must properly be treated as a motion for summary judgment.” Hal 23 Roach Studios, 896 F.2d at 1550. 24 certain materials-documents attached to the complaint, documents 25 incorporated by reference in the complaint, or matters of judicial 26 notice-without converting the motion to dismiss [or motion for 27 judgment on the pleadings] into a motion for summary judgment." 28 United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see Judgment on the pleadings is not appropriate if the court “A court may, however, consider 6 1 also Summit Media LLC v. City of Los Angeles, 530 F. Supp. 2d 1084, 2 1096 (C.D. Cal. 2008). 3 To assess the adequacy of pleadings, the same legal standard 4 applies to a motion for judgment on the pleadings as applies to a 5 Rule 12(b)(6) motion to dismiss. See Dworkin v. Hustler Magazine 6 Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). IV. 7 8 A. DISCUSSION AND ANALYSIS First Cause Of Action – § 1983 9 “Fourth Amendment rights are personal rights which . . . may 10 not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133- 11 34 (1978) (internal quotation marks omitted). 12 Amendment rights are personal and cannot be vicariously asserted, 13 Ms. Abston and her children lack standing to assert their own 14 Fourth Amendment claims for the alleged excessive force used on Mr. 15 Abston. See Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 16 365, 369 (9th Cir. 1998); Smith v. City of Fontana, 818 F.2d 1411, 17 1417 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin 18 v. de la Vina, 199 F.3d 1037 (9th Cir. 1999); Crumpton v. Gates, 19 947 F.2d 1418, 1422 (9th Cir. 1991). Because Fourth 20 In Crumpton, the court rejected a Fourth Amendment claim 21 asserted by a son whose father was shot and killed by the police. 22 The court reasoned: 23 24 25 26 27 Viewing the allegations in the light most favorable to Crumpton, as we must on review of summary judgment, Crumpton's father may have sustained a constitutionally cognizable Fourth Amendment deprivation when shot by police . . . . But Crumpton cannot assert his father's Fourth Amendment rights. Crumpton, 947 F.2d at 1422 (emphasis added). Similarly, in Smith, the court rejected a Fourth Amendment, excessive force claim 28 7 1 asserted by the children of a man shot and killed by the police. 2 The court reasoned: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Mr. Smith's children, suing in their individual capacities, also assert a claim for relief under the Fourth Amendment. However, the Supreme Court has held that Fourth Amendment rights are personal rights which . . . may not be vicariously asserted. The children were not directly subjected to the excessive use of state force and therefore cannot maintain personal causes of action under section 1983 in reliance on this Fourth Amendment theory. Smith, 818 F.2d at 1417 (emphasis added) (citation and internal quotation marks omitted). Because Ms. Abston and her children were not directly subjected to the alleged excessive force used on Mr. Abston, they cannot maintain personal civil rights causes of action under the Fourth Amendment. Mr. Abston’s Fourth Amendment rights were personal to him and may be asserted, if at all, only by his estate. Moreland, 159 F.3d at 369; Smith, 818 F.2d at 1416-17. Plaintiffs do not dispute that they cannot maintain their own Fourth Amendment causes of action under § 1983. Rather Plaintiffs’ opposition suggests the First Cause of Action does not actually allege such Fourth Amendment claims: Representing Decedent ABSTON’S estate, in the first cause of action Plaintiff MAUREEN ABSTON claims that the Defendant Officers violated the Decedent’s Fourth Amendment right to be free from unreasonable searches and seizures. Additionally, each Plaintiff asserts a personal substantive due process claim based on the violation of their right to familial companionship and society pursuant to 42 U.S.C. § 1983 in violation of their Fourteenth Amendment rights. (Doc. 19 at 8.) In other words, Plaintiffs suggest that the only Fourth Amendment claim pleaded in the complaint is asserted on behalf of Mr. Abston’s estate. This reading of the complaint is 28 8 1 untenable. 2 The First Cause of Action specifically alleges that the 3 officers “acted under color of law to deprive plaintiffs of certain 4 constitutionally protected rights” including “[t]he right to be 5 free from unreasonable searches and seizures, as guaranteed by the 6 Fourth 7 Constitution.” (Doc. 1 at 9.)3 8 “plaintiffs” in the case and, accordingly, they have alleged Fourth 9 Amendment claims. and Fourteenth Amendments to the United States Ms. Abston and her children are the The First Cause of Action gives no notice that 10 Plaintiffs claim a Fourteenth Amendment due process right for loss 11 of familial rights. 12 Ms. Abston and the children cannot maintain their own Fourth 13 Amendment claims under § 1983 for the alleged excessive force used 14 on Mr. Abston. 15 DISMISSED WITHOUT LEAVE TO AMEND. 16 B. Their individual Fourth Amendment claims are Fifth Cause of Action – Cal. Civ. Code § 52.1 17 Section 52.1 of the California Civil Code provides individuals 18 with a statutory means by which to seek relief, in a civil case, 19 for certain misconduct that interferes with their rights under 20 federal or state constitutional provisions or laws. 21 § 52.1(a): 22 23 24 25 26 27 28 As stated in If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action . . . . 3 In this case, the Fourth Amendment applies to the officers’ conduct by virtue of the Fourteenth Amendment. 9 1 In turn, § 52.1(b) grants individuals the right to civilly sue only 2 in 3 prohibited under § 52.1(a): 4 5 6 7 8 9 10 their “own name” and on their “own behalf” for conduct Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, . . . , injunctive relief, and other appropriate equitable relief . . . . (Emphasis added.) In the Fifth Cause of Action, Ms. Abston asserts a § 52.1 11 claim on behalf of Mr. Abston's estate. 12 however, like Ms. Abston, cannot assert a claim on behalf of a 13 decedent under § 52.1 because the claim must be “on his or her own 14 behalf.” Bay Area Rapid Transit Dist. v. Superior Court, 38 Cal. 15 App. 4th 141, 144 (1995) (concluding that § 52.1 “is simply not a 16 wrongful 17 themselves have been the subject of violence or threats”); Tolosko- 18 Parker v. County of Sonoma, Nos. C 06-06841 CRB, C 06-06907 CRB, 19 2009 WL 498099, at *5 (N.D. Cal. Feb. 26, 2009) (“California Civil 20 Code § 52.1 does not provide a right of action for the parents of 21 a decedent; rather, it only provides for a personal cause of action 22 for the person who has been subjected to violence or threats which 23 interfered with that person's . . . rights.”); see also LeBlanc v. 24 City of Los Angeles, No. CV 04-8250 SVW (VBKx), 2006 WL 4752614, at 25 *21-22 (C.D. Cal. Aug. 16, 2006). Plaintiffs do not challenge that 26 Ms. Abston lacks standing to assert such a claim. 27 28 death provision” and “is A private plaintiff, limited to plaintiffs who The motion as to the § 52.1 claim asserted on behalf of Mr. Abston’s estate is GRANTED WITHOUT LEAVE TO AMEND. 10 1 V. 2 For the reasons stated: 3 1. CONCLUSION As to the First Cause of Action, Defendants’ motion for 4 judgment 5 asserted individually by Maureen, Corey, Jacy, and Linda Abston, is 6 GRANTED WITHOUT LEAVE TO AMEND. 2. 7 on the pleadings as to the Fourth Amendment claims As to the Fifth Cause of Action, Defendants’ motion for 8 judgment on the pleadings as to the § 52.1 claim asserted on behalf 9 of Mr. Abston’s estate is GRANTED WITHOUT LEAVE TO AMEND. Defendant shall submit a form of order consistent with, and 10 11 within five (5) days 12 Memorandum Decision. following electronic service 13 IT IS SO ORDERED. 14 15 Dated: 9i274f October 20, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 11 of, this
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