Avila v. City of Visalia, et al., No. 1:2009cv00847 - Document 50 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION DISMISSING, without prejudice, plaintiff's Fourteenth Amendment claim and ORDERING that an amended complaint be filed within 20 days of electronic filing of this Memorandum; defendants' responsive pleading due 20 days af ter notice of electronic filing of any such amended complaint; defendants to submit a form of order consistent with this Memorandum within 5 days of electronic service of this Decision; order signed by Judge Oliver W. Wanger on 3/14/2011. (Rooney, M)
Download PDF
<![CDATA[
Avila v. City of Visalia, et al. Doc. 50 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 ARLENE AVILA, Plaintiff, 9 10 11 1:09-cv-00847-OWW-SMS MEMORANDUM DECISION REGARDING DEFENDANTS MOTION TO DISMISS SECOND AMENDED COMPLAINT (Doc. 45) v. CITY OF VISALIA, et al., 12 Defendants. 13 I. INTRODUCTION. 14 15 Plaintiff Arlene Avila ( Plaintiff ) proceeds with an action 16 pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12202. 17 29, 2010, Plaintiff filed a second amended complaint ( SAC ). 18 Defendants filed a motion to dismiss the SAC on December 17, 19 2010. 20 dismiss on February 28, 2011. 21 on March 7, 2011. 22 On November (Doc. 45). Plaintiff filed opposition to the motion to (Doc. 47). Defendants filed a reply (Doc. 48). II. FACTUAL BACKGROUND. 23 On or about May 11, 2007, Plaintiff was operating a vehicle 24 near the intersection of Walnut Avenue and Mooney Boulevard in the 25 City of Visalia in California. 26 Visalia Police Department, reported to the area to provide public 27 safety services in response to a call to a private location. 28 SAC alleges that, upon arrival, Defendants erroneously determined Defendants, employees of the The 1 Dockets.Justia.com 1 that Plaintiff was operating a motor vehicle while under the 2 influence of alcohol or a drug. 3 Plaintiff contends that she was not under the influence, 4 rather, she was experiencing symptoms of her Parkinson s Disease, 5 a systemic neurological disorder. 6 protestations that she was exhibiting symptoms of Parkinson s 7 Disease and was not under the influence. Defendants physically 8 restrained Plaintiff and took her to the hospital, against her 9 will and over her objection. Defendants ignored Plaintiff s Plaintiff was detained and charged 10 with driving under the influence. 11 acquitted of all charges. 12 Plaintiff was subsequently Plaintiff s request for a wheelchair. The SAC alleges that Defendants denied 13 The SAC also alleges that on November 16, 2010, Defendants 14 Lyon, Arjona, Scott, and Torrez, also Visalia Police Department 15 officers, retaliated against Plaintiff for filing the instant 16 action by entering her residence without probable cause, seizing 17 her, and transporting her to a hospital. III. LEGAL STANDARD. 18 19 Dismissal under Rule 12(b)(6) is appropriate where the 20 complaint lacks sufficient facts to support a cognizable legal 21 theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 22 Cir.1990). To sufficiently state a claim to relief and survive a 23 12(b) (6) motion, the pleading does not need detailed factual 24 allegations but the [f]actual allegations must be enough to raise 25 a right to relief above the speculative level. Bell Atl. Corp. v. 26 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). 27 Mere labels and conclusions or a formulaic recitation of the 28 elements of a cause of action will not do. Id. 2 Rather, there must 1 be enough facts to state a claim to relief that is plausible on 2 its face. Id. at 570. In other words, the complaint must contain 3 sufficient factual matter, accepted as true, to state a claim to 4 relief that is plausible on its face. Ashcroft v. Iqbal, --- U.S. 5 ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal 6 quotation marks omitted). 7 The Ninth Circuit has summarized the governing standard, in 8 light of Twombly and Iqbal, as follows: In sum, for a complaint to 9 survive a motion to dismiss, the nonconclusory factual content, and 10 reasonable inferences from that content, must be plausibly 11 suggestive of a claim entitling the plaintiff to relief. Moss v. 12 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal 13 quotation marks omitted). Apart from factual insufficiency, a 14 complaint is also subject to dismissal under Rule 12(b)(6) where it 15 lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or 16 where the allegations on their face show that relief is barred 17 for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 18 910, 166 L.Ed.2d 798 (2007). 19 In deciding whether to grant a motion to dismiss, the court 20 must accept as true all well-pleaded factual allegations in the 21 pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, 22 however, required to accept as true allegations that are merely 23 conclusory, 24 inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 25 (9th Cir.2001). When ruling on a Rule 12(b)(6) motion to dismiss, 26 if a district court considers evidence outside the pleadings, it 27 must normally convert the 12(b)(6) motion into a Rule 56 motion for 28 summary unwarranted judgment, and deductions it must 3 of give fact, the or unreasonable nonmoving party an 1 opportunity to respond. United States v. Ritchie, 342 F.3d 903, 2 907 court 3 materials-documents 4 incorporated by reference in the complaint, or matters of judicial 5 notice-without converting the motion to dismiss into a motion for 6 summary judgment. Id. at 908. (9th Cir.2003). A attached IV. 7 may, to however, the consider complaint, certain documents DISCUSSION 8 A. Plaintiff s Section 1983 Claims 9 1. Fourteenth Amendment Claim 10 The SAC contains language regarding Plaintiff s right to 11 equal treatment, but it is not clear whether Plaintiff seeks to 12 assert a Fourteenth Amendment claim. To the extent Plaintiff seeks 13 to allege a Fourteenth Amendment equal protection claim, the 14 complaint does not give fair notice of such a claim. 15 SAC does not remedy the deficiencies identified in the memorandum 16 decision dismissing any Fourteenth Amendment claim advanced in 17 Plaintiff s first amended complaint ( FAC ): 18 19 20 21 22 23 Further, the To the extent the FAC attempts to allege an equal protection claim, it is deficient. Plaintiff fails to allege facts sufficient to support an inference that she was a member of a protected class or was treated differently from any other similarly situated individuals. See, e.g., Pierce v. County of Orange, 519 F.3d 985, 1018 (9th Cir. 2008) (affirming summary judgment on equal protection claim based on disability status where plaintiffs failed to establish they were treated differently from other similarly situated persons). Defendants motion to dismiss Plaintiff s equal protection claim is GRANTED, with leave to amend. 24 25 (Doc. 39 at 4-5). The SAC is too vague to provide fair notice of 26 any equal protection claim and does not remedy the deficiencies 27 identified in the memorandum decision. 28 dismiss is GRANTED with respect to any Fourteenth Amendment claim 4 Defendants motion to 1 2 Plaintiff is attempting to advance. At oral argument, Plaintiff s counsel requested leave to amend 3 in order to plead a substantive due process claim. 4 have one more opportunity to properly plead a cognizable claim 5 under the Fourteenth Amendment. 6 2. Retaliation Claim 7 Defendants contend that Plaintiff s Plaintiff will retaliation claim is 8 subject to dismissal because the actions underlying the retaliation 9 claim occurred after the date on which the FAC was filed. 10 Defendants contend that Plaintiff s retaliation claim is subject to 11 the requirements of Federal Rule of Civil Procedure 15(d) regarding 12 supplemental pleadings. 13 14 15 Rule 15(d) provides: On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. 16 Fed. R. Civ. P. 15. Leave to permit supplemental pleading under 17 Rule 15 is favored where leave would promote judicial efficiency. 18 E.g., Planned Parenthood v. Neely, 130 F.3d 400, 402 (9th Cir. 19 1997). 20 The applicability of Rule 15(d) under the circumstances is 21 dubious. The SAC cannot be characterized as a supplemental 22 pleading, because at the time Plaintiff filed the SAC, there was 23 no operative complaint before the court; in other words there was 24 no pleading to be supplemented. Further, in dismissing the FAC, 25 the court granted Plaintiff leave to amend her retaliation claim. 26 Assuming arguendo that Rule 15(d) does apply, leave is appropriate. 27 The SAC is subject to dismissal, and Defendants now have reasonable 28 5 1 notice of the basis of the retaliation claim Plaintiff with 2 presumably assert in her third amended complaint. 3 not argued that allowing Plaintiff to assert her retaliation claim 4 prejudices them, and there is no apparent basis for such an 5 assertion. 6 B. Plaintiff s ADA Claim Defendants have 7 In order to state a claim under the ADA, Plaintiff must allege 8 (1) she is an individual with a disability; (2) she is otherwise 9 qualified to participate in or receive the benefit of some public 10 entity's services, programs, or activities; (3) she was excluded 11 from participation in or denied the benefits of the public entity's 12 services, programs, or activities, or was otherwise discriminated 13 against by the public entity; and (4) the exclusion, denial of 14 benefits, or discrimination occurred 15 E.g., Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1021 (9th 16 Cir. 2010). 17 against by reason of her disability by establishing that her 18 disability was a motivating factor in an official s decision to 19 exclude the plaintiff from a service or program. 20 Alternatively, a disabled person may carry her pleading burden by 21 alleging facts which demonstrate that she was subjected to an undue 22 burden because of a facially neutral law. 23 Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (person sufficiently 24 alleged discrimination by reason of his disability by alleging 25 that facially neutral law placed undue burden on him). 26 27 28 by reason of her disability. A plaintiff may establish that she was discriminated Id. at 1022. See McGary v. City of Plaintiff identifies the public service she is entitled to receive as: the full benefit of publicly 6 available criminal 1 2 investigatory services sufficiently sophisticated to negate [a mistaken belief that someone suffering from Parkinson s Disease is under the influence of drugs or alcohol] and the consequences of that mistaken belief. 3 (SAC at 3). Plaintiff contends that she was discriminated against 4 by reason of her disability because, as a result of the City s 5 inadequate training policies, persons with Parkinson s Disease are 6 treated in a manner that would not occur in the case of a person 7 in the same situation but not suffering from Parkinson s Disease. 8 (SAC at 3-4). 9 Although the SAC is not a model of clarity, it appears that 10 Plaintiff s claim is that the City of Visalia s facially neutral 11 training policies have a disparate impact on persons with 12 Parkinson s Disease because the training policies do not adequately 13 prepare officers to evaluate motorists suffering from Parkinson s 14 disease, resulting in unjustified arrests. Accepting the 15 allegations of the SAC as true, Plaintiff has stated an ADA claim 16 based on a disparate impact theory. 17 ORDER 18 For the reasons stated, IT IS ORDERED: 19 1) Plaintiff s Fourteenth Amendment claim under section 1983 20 is DISMISSED, without prejudice; 21 2) Any amended complaint is due within twenty (20) days of the 22 electronic filing of this Memorandum Decision. Defendants 23 responsive pleading is due within twenty (20) days of notice 24 of the electronic filing of any such amended complaint; and 25 3) Defendants shall submit a form of order consistent with 26 this Memorandum Decision within five 27 electronic service of this decision. 28 7 (5) days following 1 IT IS SO ORDERED. 2 Dated: hkh80h March 14, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 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 28 8
]]>
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.
