-MJS Rodriguez et al v. City of Modesto et al, No. 1:2010cv01370 - Document 19 (E.D. Cal. 2011)
Court Description: ORDER GRANTING 18 Motion to Dismiss WITH PREJUDICE; Judgment against Plaintiffs and In Favor of Defendants, signed by District Judge Lawrence J. O'Neill on 01/06/2011.CASE CLOSED (Martin, S)
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-MJS Rodriguez et al v. City of Modesto et al Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL RODRIGUEZ, et al., 12 13 14 CASE NO. CV F 10-1370 LJO MJS Plaintiffs, ORDER ON DEFENDANTS’ F.R.Civ.P. 12 MOTION TO DISMISS AMENDED CLAIMS vs. CITY OF MODESTO, et al, 15 Defendants. / 16 17 INTRODUCTION 18 Defendants City of Modesto (“City”) and eight City peace officers1 seek to dismiss plaintiffs’2 19 excessive force, unlawful arrest, Monell and related claims as “defective” in the absence of sufficient 20 legal grounds and factual allegations. Plaintiffs filed no timely papers to oppose dismissal of their 21 claims. This Court considered defendants’ F.R.Civ.P. 12(b)(6) motion to dismiss on the record and 22 VACATES the January 19, 2011 hearing, pursuant to Local Rule 230(c), (g). For the reasons discussed 23 below, this Court DISMISSES plaintiffs’ claims. 24 25 26 27 1 The defendant City peace officers are City Police Chief Roy W asden (“Chief W asden”), Lieutenant Ron Cloward (“Lt. Cloward”), Sergeant John Buehler (“Sgt. Buehler”), and officers Jeff Spruiell (“Officer Spruiell”), James Murphy (“Officer Murphy”), Ronald Ziya (“Officer Ziya”), Mark Fontes (“Officer Fontes”) and Kalani Souza (“Officer Souza”). The City and the eight defendant City peace officers will be referred to collectively as “defendants.” 2 28 Plaintiffs are Miguel Rodriguez (“Mr. Rodriguez”), Charisse Fernandez (“Ms. Fernandez”), and Adrian Alizaga (“Mr. Alizaga”) and will be referred to collectively as “plaintiffs.” 1 Dockets.Justia.com 1 BACKGROUND3 2 Mr. Alizaga’s Arrest 3 On February 8, 2009 at around 1 a.m., plaintiffs gathered at Mr. Alizaga’s Modesto home to 4 celebrate his birthday. A police officer knocked at the door, and Mr. Alizaga’s dog ran out when he 5 opened the door. As Mr. Alizaga tried to retrieve the dog, Officers Spruiell and Ziya grabbed Mr. 6 Alizaga, threw him to the ground and handcuffed him “for no apparent reason.” Officers Spruiell and 7 Ziya struck Mr. Alizaga with their batons when Mr. Alizaga was on the ground. Mr. Alizaga was 8 booked on charges of resisting arrest, a misdemeanor. 9 Mr. Rodriguez’ Arrest 10 Mr. Rodriguez came out of the house, observed Mr. Alizaga’s arrest, and wanted to find out the 11 reason. Mr. Rodriguez stood peaceably on the home’s front lawn and attempted to learn from police 12 why Mr. Alizaga had been arrested. Officers Ziya, Fontes and Murphy arrested Mr. Rodriguez without 13 having observed him commit a criminal offense. During the arrest, Officer Fontes shot Mr. Rodriguez 14 with his Taser several times, and Officer Ziya struck Mr. Rodriguez’ arm with his baton. Officer 15 Murphy gave the “bite command” to his K-9 which bit Mr. Rodriguez, who never struck or attempted 16 to strike the officers. 17 When Mr. Rodriguez was handcuffed and walked to a patrol car, unidentified officer Doe 18 Defendant No. 1 put a shotgun to Mr. Rodriguez’ back and banged his head against the roof of the patrol 19 car. Doe Defendant No. 1 attempted to break Mr. Rodriguez’ bad leg after Mr. Rodriguez had alerted 20 the officer of a prior injury to the leg. Mr. Rodriguez screamed: “What are you doing to me? I have a 21 daughter!” Doe Defendant No. 1 responded: “Fuck your daughter, you piece of shit!” 22 The police threw Mr. Rodriguez in the back of a patrol car to injure his bad leg. The police took 23 Mr. Rodriguez to a hospital for medical clearance and then to jail. Mr. Rodriguez was released the 24 following morning at about 1 a.m. with a citation for resisting arrest, a misdemeanor. 25 26 Ms. Fernandez’ Arrest When the police arrested Mr. Alizaga and Mr. Rodriguez, Ms. Fernandez came outside and 27 3 28 The factual recitation is derived generally from plaintiffs’ First Amended Complaint (“FAC”), the target of defendants’ challenges. 2 1 observed Mr. Alizaga and Mr. Rodriguez being beaten. As Ms. Fernandez stood on the home’s porch 2 and watched, Sgt. Buehler grabbed Ms. Fernandez, threw her to the ground, and handcuffed her for “no 3 apparent reason.” Unidentified officer Doe Defendant No. 2 struck Ms. Fernandez several times with 4 his club when Ms. Fernandez lay face-down on the front lawn, handcuffed and screaming for help. 5 Officer Souza held a police dog next to Ms. Fernandez’ head for no reason. Police placed Ms. 6 Fernandez in a patrol car’s back seat and ignored her repeated requests for an explanation. The police 7 transported Ms. Fernandez to an airport parking log where no female officer was present. Ms. Fernandez 8 feared “the police would sexually assault her.” Ms. Fernandez was transported to a hospital for medical 9 clearance, was taken to jail, was charged with resisting arrest, and released with a citation for resisting 10 11 12 arrest, a misdemeanor. Lt. Cloward was the “ranking officer” on the scene and did nothing to restrain the unlawful behavior of officers under his command. 13 14 15 Plaintiffs’ Injuries Plaintiffs claim to have suffered multiple contusions and abrasions and emotional distress. Ms. Fernandez further claims cervical strain. 16 Plaintiffs’ Claims 17 The complaint alleges 42 U.S.C. § 1983 (“section 1983") claims for excessive force and failure 18 adequately to discipline and supervise officers (collectively the “section 1983 claims”). The complaint 19 further alleges tort claims of battery and false arrest and violations of California Civil Code sections 51.7 20 and 52.1 (collectively the “state law claims”). These claims will be discussed in greater detail below. 21 The complaint seeks to recover compensatory damages and attorney fees. 22 Plaintiffs’ Nolo Contendere Pleas 23 On February 10, 2009, a misdemeanor criminal complaint was filed in Stanislaus County 24 Superior Court to charge each plaintiff with a count of violation of California Penal Code section 148(a) 25 (restricting, delaying or obstructing peace officer) (“section 148(a)”). The criminal complaint accused: 26 1. 27 28 Mr. Alizaga of wilfully and unlawfully resisting, obstructing and delaying Officer Spruiell; 2. Ms. Fernandez of wilfully and unlawfully resisting, obstructing and delaying Sgt. 3 1 Buehler and Officer Fontes; and 2 3. 3 Mr. Rodriguez of wilfully and unlawfully resisting, obstructing and delaying Officer Murphy. 4 Plaintiffs entered nolo contendere pleas to charges against them and were convicted subject to their 5 pleas. 6 DISCUSSION 7 F.R.Civ.P. 12(b)(6) Motion To Dismiss Standards 8 9 Defendants seek to dismiss plaintiffs’ claims in that the FAC “is defective on its face” and “fails to state facts sufficient to constitute any claim against the defendants.” 10 A F.R.Civ.P. 12(b)(6) motion to dismiss is a challenge to the sufficiency of the pleadings set 11 forth in the complaint. “When a federal court reviews the sufficiency of a complaint, before the reception 12 of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not 13 whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to 14 support the claims.” Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974); Gilligan v. Jamco 15 Development Corp., 108 F.3d 246, 249 (9th Cir. 1997). A F.R.Civ.P. 12(b)(6) dismissal is proper where 16 there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a 17 cognizable legal theory.” Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Graehling 18 v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). 19 In resolving a F.R.Civ.P. 12(b)(6) motion, a court must: (1) construe the complaint in the light 20 most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine 21 whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty 22 Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996). Nonetheless, a court is not required “to accept as 23 true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” 24 In re Gilead Sciences Securities Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). A court 25 “need not assume the truth of legal conclusions cast in the form of factual allegations,” U.S. ex rel. 26 Chunie v. Ringrose, 788 F.2d 638, 643, n. 2 (9th Cir.1986), and a court must not “assume that the 27 [plaintiff] can prove facts that it has not alleged or that the defendants have violated . . . laws in ways 28 that have not been alleged.” Associated General Contractors of California, Inc. v. California State 4 1 Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897 (1983). A court need not permit an attempt 2 to amend if “it is clear that the complaint could not be saved by an amendment.” Livid Holdings Ltd. 3 v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). 4 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 5 allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more 6 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 7 Bell Atl. Corp. v. Twombly, 550 U.S. 554,127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted). 8 Moreover, a court “will dismiss any claim that, even when construed in the light most favorable to 9 plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Marketing 10 Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, “a complaint . . . must contain either 11 direct or inferential allegations respecting all the material elements necessary to sustain recovery under 12 some viable legal theory.” Twombly, 550 U.S. at 562, 127 S.Ct. at 1969 (quoting Car Carriers, Inc. v. 13 Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). 14 15 16 17 18 In Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937,1949 (2009), the U.S. Supreme Court recently explained: To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. . . . The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. (Citations omitted.) 19 20 After discussing Iqbal, the Ninth Circuit Court of Appeals summarized: “In sum, for a complaint 21 to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that 22 content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret 23 Service, 572 F.3d 962, 989 (9th Cir. 2009) (quoting Iqbal, __ U.S. __, 129 S.Ct. at 1949). 24 The U.S. Supreme Court applies a “two-prong approach” to address a motion to dismiss: 25 First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . . 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 26 27 28 5 1 more than the mere possibility of misconduct, the complaint has alleged – but it has not “show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). 2 3 4 5 6 7 In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Iqbal, __ U.S. __, 129 S.Ct. at 1949-1950. For a F.R.Civ.P. 12(b)(6) motion, a court generally cannot consider material outside the 8 complaint. Van Winkle v. Allstate Ins. Co., 290 F.Supp.2d 1158, 1162, n. 2 (C.D. Cal. 2003). 9 Nonetheless, “judicial notice may be taken of a fact to show that a complaint does not state a cause of 10 action.” Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956); see 11 Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997). A court properly may take 12 judicial notice of matters of public record outside the pleadings and consider them for purposes of the 13 motion to dismiss. Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (citation omitted). 14 With these standards in mind, this Court turns to defendants’ challenges to plaintiffs’ claims. 15 Excessive Force 16 The FAC’s (first) section 1983 claim alleges that Sgt. Buehler, Officer Souza and Doe Defendant 17 No. 1 “used unreasonable force when arresting” Ms. Fernandez to violate the Fourth Amendment. The 18 FAC’s (second) section 1983 claim alleges that Officers Murphy, Fontes and Ziya “used unreasonable 19 force when arresting” Mr. Rodriguez to violate the Fourth Amendment. 20 21 22 23 24 25 26 27 28 Defendants argue that Ms. Fernandez and Mr. Rodriguez’ nolo contendere pleas and resulting convictions bar their excessive force claims. In Heck v. Humphrey, 512 U.S. 477, 487-488, 114 S.Ct. 2364 (1994), the U.S. Supreme Court explained: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a [plaintiff] seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the 6 1 2 3 plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. 4 5 “Heck says that ‘if a criminal conviction arising out of the same facts stands and is fundamentally 6 inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action 7 must be dismissed.’” Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005), cert. denied, 545 U.S. 8 1128, 125 S.Ct. 2938 (2005) (quoting Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996)). Heck 9 objectives include “preserving consistency and finality, and preventing ‘a collateral attack on [a] 10 conviction through the vehicle of a civil suit.’” Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) 11 (quoting Heck, 512 U.S. at 484-485, 114 S.Ct. 2364). “[F]or purposes of the Heck analysis, a plea of 12 nolo contendere in a California criminal action has the same effect as a guilty plea or jury verdict of 13 guilty.” Nuno v. County of San Bernardino, 58 F.Supp.2d 1127, 1135 (C.D. Cal. 1999). 14 Defendants argue that Heck bars Ms. Fernandez or Mr. Rodriguez’ excessive force claims in that 15 success on the claims would necessarily imply invalidity of their convictions. Defendants explain that 16 a valid section 148(a) conviction requires the criminal defendant to have “resisted, delay, or obstructed” 17 a police officer’s lawful exercise of duties. 18 “The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the 19 defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in 20 the performance of his or her duties, and (3) the defendant knew or reasonably should have known that 21 the other person was a peace officer engaged in the performance of his or her duties.” In re Muhammed 22 C., 95 Cal.App.4th 1325, 1329, 116 Cal.Rptr.2d 21 (2002) (citations omitted). “[I]f a defendant is 23 charged with violating section 148 and the arrest is found to be unlawful, a defendant cannot be 24 convicted of that section.” People v. White, 101 Cal.App.3d 161, 166, 161 Cal.Rptr. 541 (1980) (if the 25 jurors “found the arrest was made with excessive force, the arrest was unlawful and they should find the 26 defendant not guilty of those charges which required the officer to be lawfully engaged in the 27 performance of his duties”). 28 In Heck, 512 U.S. at 487, n. 6, 114 S.Ct. 2364, the U.S. Supreme Court explained that a resisting 7 1 2 3 4 5 6 arrest conviction bars a section 1983 unreasonable seizure claim: An example of this latter category – a § 1983 action that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiff's criminal conviction was wrongful – would be the following: A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. . . . He then brings a § 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. In order to prevail in this § 1983 action, he would have to negate an element of the offense of which he has been convicted. Regardless of the state law concerning res judicata . . ., the § 1983 action will not lie. (Citations omitted.) 7 8 The section 1983 excessive force claims would necessarily imply that Ms. Fernandez and Mr. 9 Rodriguez’ section 148(a) convictions are wrongful. Pursuit of the excessive force claims entails and 10 attempt to negate an element of the section 148(a) offenses. The convictions demonstrate, for purposes 11 here, that Ms. Fernandez and Mr. Rodriguez’ arrests, and the force to accomplish them, were lawful. 12 If such arrests and use of force were unlawful, there would have been no section 148(a) convictions. 13 Allowing the excessive force claims to proceed would involve an attempt to unwind the section 148(a) 14 convictions, which Heck bars to warrant dismissal of the excessive force claims, particularly in the 15 absence of the convictions’ reversal, expungement or declaration of invalidity by a tribunal. 16 Officer Souza 17 Defendants contend that the FAC fails to allege a claim against Officer Souza given the FAC’s 18 limited allegation that “Officer Souza held a police dog next to [Ms. Fernandez’] head for no reason, 19 causing [Ms. Fernandez] to suffer severe emotional distress.” Defendants argue that holding a police 20 dog next to Ms. Fernandez fails to constitute an actionable use of force. 21 “Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 22 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the 23 claimant of some right, privilege, or immunity protected by the Constitution or laws of the United 24 States.” Leer v. Murphy, 844 F.2d 628, 632-633 (9th Cir. 1988). 25 “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for 26 vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 27 811 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 2694, n. 3 (1979)). 28 Section 1983 and other federal civil rights statutes address liability “in favor of persons who are deprived 8 1 of ‘rights, privileges, or immunities secured’ to them by the Constitution.” Carey v. Piphus, 435 U.S. 2 247, 253, 98 S.Ct. 1042 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 996 3 (1976)). “The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of 4 a right ‘secured by the Constitution and laws.’” Baker, 443 U.S. at 140, 99 S.Ct. 2689 (1979). Stated 5 differently, the first step in a section 1983 claim is to identify the specific constitutional right allegedly 6 infringed. Albright, 510 U.S. at 271, 114 S.Ct. at 813. “Section 1983 imposes liability for violations 7 of rights protected by the Constitution, not for violations of duties of care arising out of tort law.” Baker, 8 443 U.S. at 146, 99 S.Ct. 2689. 9 The FAC is unclear as to how Officer Souza’s use of the police dog constitutes excessive force. 10 There are no allegations that Officer Souza or his police dog applied force to Ms. Fernandez. The FAC 11 raises inferences that neither Officer Souza nor his police dog applied force to Ms. Fernandez. In the 12 absence of a use of force, Ms. Fernandez lacks an excessive force claim against Officer Souza to further 13 warrant dismissal of the (first) section 1983 excessive force claim. 14 Monell Liability 15 The FAC’s (third) Monell claim alleges: 16 1. The City “has a custom and common practice of failing to appropriately discipline its 17 police officers for acts of misconduct, especially the use of excessive force against 18 persons being arrested”; and 19 2. The City and Chief Wasden “had a legal duty to adequately discipline their officers in 20 order to safeguard the public from police abuse” and “were deliberately indifferent to 21 their duty to adequately and [sic] discipline their officers.” 22 Defendants attack the FAC’s lack of necessary facts and elements to support a Monell claim. 23 A local government unit may not be held liable for the acts of its employees under a respondeat 24 superior theory. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018 25 (1978); Davis v. Mason County, 927 F.2d 1473, 1480 (9th Cir.), cert. denied, 502 U.S. 899, 112 S.Ct. 26 275 (1991); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). “Federal case law 27 has long barred respondeat superior liability against state actors in suits brought under 42 U.S.C. § 28 1983.” Fed. of African American Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996). 9 1 Claimants suing state actors under 42 U.S.C. § 1983 “must establish that their alleged injury was the 2 result of a ‘policy or custom’ of that state actor.” African American Contractors, 96 F.3d at 1215. 3 “[A] municipality cannot be held liable solely because it employs a tortfeasor.” Monell, 436 U.S. 4 at 691, 98 S.Ct. at 2018. The local government unit “itself must cause the constitutional deprivation.” 5 Gilette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992), cert. denied, 510 U.S. 932, 114 S.Ct. 345 6 (1993). Because liability of a local governmental unit must rest on its actions, not the actions of its 7 employees, a plaintiff must go beyond the respondeat superior theory and demonstrate that the alleged 8 constitutional violation was the product of a policy or custom of the local governmental unit. City of 9 Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197 (1989); Pembaur v. City of Cincinnati, 475 10 U.S. 469, 478-480, 106 S.Ct. 1292 (1986). To maintain a civil rights claim against a local government, 11 a plaintiff must establish the requisite culpability (a “policy or custom” attributable to municipal 12 policymakers) and the requisite causation (the policy or custom as the “moving force” behind the 13 constitutional deprivation). Monell, 436 U.S. at 691-694, 98 S.Ct. 2018; Gable v. City of Chicago, 296 14 F.3d 531, 537 (7th Cir. 2002). 15 “In addition, a local governmental entity may be liable if it has a ‘policy of inaction and such 16 inaction amounts to a failure to protect constitutional rights.’” Lee v. City of Los Angeles, 250 F.3d 668, 17 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). A local government 18 entity may be liable under section 1983 “if its deliberate policy caused the constitutional violation 19 alleged.” Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007). However, “[l]iability for 20 improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon 21 practices of sufficient duration, frequency and consistency that the conduct has become a traditional 22 method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1995), cert. denied, 520 23 U.S. 1117, 117 S.Ct. 1249 (1997). 24 A municipal policy or custom is established by showing: (1)“a longstanding practice or custom 25 which constitutes the ‘standard operating procedure’ of the local government entity;” (2) “that the 26 decision-making official was, as a matter of state law, a final policymaking authority whose edicts or 27 acts may fairly be said to represent official policy in the area of decision;” or (3) “that an official with 28 final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.” 10 1 Ulrich v. City and County of San Francisco, 308 F.3d 968, 984-985 (9th Cir. 2002) (internal quotation 2 marks and citations omitted). 3 Nonetheless, “a public entity is not liable for § 1983 damages under a policy that can cause 4 constitutional deprivations, when . . . an individual officer, acting pursuant to the policy, inflicted no 5 constitutional harm to the plaintiff.” Quintanilla v. City of Downey, 84 F.3d 353, 355 (9th Cir. 1996). 6 “If a person has suffered no constitutional injury at the hands of the individual police officer, the fact 7 that the departmental regulations might have authorized the use of constitutionally excessive force is 8 quite beside the point.” City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 1573 (1986). 9 Defendants initially attack the Monell claim in the absence of a viable section 1983 excessive 10 force claim. Defendants are correct. With no cognizable constitutional injury, plaintiffs are unable to 11 establish a policy, custom or practice of excessive force to impose Monell liability. 12 Turning to the merits of the Monell claim, defendants note that it alleges a violation of plaintiffs’ 13 Fourteenth Amendment rights.4 Defendants argue that the FAC invokes nothing “outside the scope of 14 the Fourth Amendment.” 15 “Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ 16 against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of 17 “substantive due process,” must be the guide of analyzing these claims.’” Albright, 510 U.S. at 273, 114 18 S.Ct. at 813 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1989)). “[I]f a 19 constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth 20 Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not 21 under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272, n. 7, 117 S.Ct. 22 1219 (1997). 23 24 25 26 In Graham, 490 U.S. at 395, 109 S.Ct. 1865, the U.S. Supreme Court determined that section 1983 excessive force claims are addressed under the Fourth Amendment’s reasonableness standard: [A]ll claims that law enforcement officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach. Because the Fourth Amendment provides 27 28 4 The claim’s title includes “Fourteenth Amendment – M unicipal Custom of Tolerating Excessive Force.” 11 1 2 an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims. 3 Defendants are correct that the FAC alleges excessive force to invoke the Fourth Amendment, 4 not the Fourteenth Amendment. The FAC lacks a viable Fourteenth Amendment claim to attempt to 5 invoke Monell liability. Moreover, the complaint lacks facts to support a Monell claim and relies on 6 conclusory allegations of failure to discipline. The FAC lacks facts to raise even inferences of a requisite 7 policy or custom, final policy making authority, or delegation of authority or ratification of a 8 subordinate’s decision for a viable Monell claim. The (third) Monell claim is subject to dismissal. 9 Lt. Cloward 10 The FAC’s (fourth) failure to supervise claim alleges that Lt. Cloward “was the highest ranking 11 officer on the scene,” “personally directed and encouraged his subordinates in violating Plaintiff’s Fourth 12 Amendment rights,” “was aware of the abusive behavior of the other defendant officers,” and “had a 13 legal duty to intervene and to exercise appropriate command functions to protect Plaintiffs.” 14 15 Defendants challenge the FAC’s failure to attribute Lt. Cloward’s personal or direct wrongdoing given the FAC’s limited above allegations. 16 17 18 Supervisory Liability Defendants fault the FAC’s failure to link Lt. Cloward’s supervisory conduct to a constitutional deprivation. 19 Congress did not intend to “impose liability vicariously on [employers or supervisors] solely on 20 the basis of the existence of an employer-employee relationship with a tortfeasor.” Monell, 436 U.S. at 21 692, 98 S.Ct. at 2036. Generally, supervisory personnel are not liable under section 1983 for actions of 22 their employees under a respondeat superior theory, and thus, when a named defendant holds a 23 supervisory position, the causal link between him and the claimed constitutional violation must be 24 specifically alleged and proved. See Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001); Fayle v. 25 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. 26 denied, 442 U.S. 941, 99 S.Ct. 2883 (1979). 27 To establish a prima facie case of supervisor liability, a plaintiff must allege facts to indicate that 28 the supervisor defendant either: (1) personally participated in the alleged deprivation of constitutional 12 1 rights; (2) knew of the violations and failed to act to prevent them; or (3) promulgated or implemented 2 a policy “so deficient that the policy itself ‘is a repudiation of constitutional rights’ and is ‘the moving 3 force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Taylor, 880 4 F.2d at 1045. A supervising official is liable in his individual capacity if he “set[ ] in motion a series 5 of acts by others, or knowingly refused to terminate a series of acts by others, which he kn[e]w or 6 reasonably should [have] know[n], would cause others to inflict the constitutional injury.” Larez v. City 7 of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (ratification, poor investigation, or failure to terminate 8 series of events may make supervisor liable).5 9 A fellow judge of this Court has explained that supervisory liability in an individual capacity 10 requires: “(1) that defendant's ‘own culpable action or inaction in the training, supervision, or control 11 of his subordinates’ caused the constitutional injury; (2) that the defendant ‘acquiesce[d] in the 12 constitutional deprivations of which [the] complaint is made;’ or (3) that his conduct showed a ‘reckless 13 or callous indifference to the rights of others.’” Phillips v. City of Fairfield, 406 F.Supp.2d 1101, 1116 14 (E.D. Cal. 2005) (quoting Larez, 946 F.2d at 646)). 15 “The law clearly allows actions against supervisors under section 1983 as long as a sufficient 16 causal connection is present and the plaintiff was deprived under color of law of a federally secured 17 right.” Redman v. County of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991). 18 19 Defendants fault the FAC’s mere “bald recitation of conclusory allegations” as to Lt. Cloward’s supervisory liability. 20 Defendants are correct. The FAC offers mere generalities, not facts, that Lt. Cloward is subject 21 to supervisory liability. There are no facts that Lt. Cloward personally participated in an alleged 22 constitutional deprivation through his action or inaction, knew of the violations and failed to act to 23 prevent them, or promulgated or implemented a constitutionally defective policy. Moreover, in the 24 absence of an actionable section 1983 claim against the arresting officers, no factual basis exists to 25 impose supervisory liability on Lt. Cloward to warrant dismissal of the (fourth) failure to supervise 26 5 27 28 The Ninth Circuit offered alternative elements to impose section 1983 liability on a supervisor: “‘(1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” Jeffers, 267 F.3d at 915 (quoting Redman v. County of San Diego, 942 F.2d 1435, 1446 (9 th Cir. 1991)). 13 1 claim. / / / 2 State Law Claims 3 Defendants contend that plaintiffs’ section 148(a) convictions bar their state law claims under 4 public policy. Defendant point to Susag v. City of Lake Forest, 94 Cal.App.4th 1401, 1405-1406, 115 5 Cal.Rptr.2d 269 (2002), where the California Court of Appeal explained: 6 It is established that a person convicted of resisting or obstructing a peace officer (Pen.Code, § 148, subd. (a)) may not maintain an action for the violation of federal civil rights (42 U.S.C. § 1983 (section 1983)) based on the officers' conduct during the arrest, unless the conviction has been set aside through appeal or other postconviction proceeding. We hold here that for public policy reasons, relief from a conviction under Penal Code section 148, subdivision (a) is also a prerequisite of state law battery and related claims arising from the alleged use of excessive force during the arrest. 7 8 9 10 Defendants further contend that plaintiffs’ criminal convictions estop them “from relitigating 11 facts necessarily established in the criminal proceeding.” Higginbotham v. King, 54 Cal.App.4th 1040, 12 1044, 63 Cal.Rptr.2d 114 (1997); see Compton v. Ide,732 F.2d 1429, 1434 (9th Cir. 1984) (action 13 against officers for false arrest barred by plaintiff's criminal conviction). Defendants conclude that since 14 the lawfulness of plaintiffs’ arrests were established in their criminal action, plaintiffs are barred to 15 relitigate facts “necessary to those convictions.” 16 Defendants raise valid points. The state law claims arise out of their arrests leading to their 17 convictions from which they have not obtained relief. The state law claims, like the section 1983 18 excessive force claims, pose a threat to unwind plaintiffs’ valid section 148(a) convictions. Plaintiffs’ 19 criminal actions estop them to relitigate here the facts necessary to establish the state law claims. Public 20 policy prevents such relitigation to bar the state law claims and to warrant their dismissal. 21 CONCLUSION AND ORDER 22 For the reasons discussed above, this Court: 23 1. DISMISSES with prejudice this action against defendants; and 24 2. DIRECTS the clerk to enter judgment against plaintiffs Miguel Rodriguez, Charisse 25 Fernandez and Adrian Alizaga and in favor of defendants City of Modesto, Roy Wasden, 26 Ron Cloward, John Buehler, Jeff Spruiell, James Murphy, Ronald Ziya, Mark Fontes and 27 /// 28 14 1 Kalani Souza and to close this action. 2 3 IT IS SO ORDERED. Dated: 66h44d January 6, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 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 15
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