Farmer v. County of Calaveras et al, No. 1:2018cv00009 - Document 21 (E.D. Cal. 2018)

Court Description: ORDER Granting in Part and Denying in Part Defendants' 5 Motion to Dismiss, signed by District Judge Dale A. Drozd on 4/23/2018. (If plaintiff wishes to amend her complaint to attempt to cure any of the deficiencies identified in this order, she is directed to file with the court an amended complaint no later than twenty-one days from the issuance of this order.) (Gaumnitz, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANGELA FARMER, 12 13 14 15 16 17 18 No. 1:18-cv-00009-DAD-SAB Plaintiff, v. COUNTY OF CALAVERAS, a Government Entity; HEATHER GORDON, individually and in her official capacity as a Sheriff Deputy for Calaveras County, and DOES 1–50, individually and in their official capacities as peace officers, jointly and severally, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS (Doc. No. 5) Defendants. 19 20 This matter is before the court on defendants’ motion to dismiss. (Doc. No. 5.) At the 21 March 6, 2018 hearing on the motion attorney Justin Kirk Tabayoyon appeared on behalf of 22 plaintiff and attorney Deborah A. Byron appeared on behalf of defendants. Having considered 23 the parties’ briefs and oral arguments and for the reasons set forth below, the court will grant in 24 part and deny in part defendants’ motion to dismiss. 25 26 BACKGROUND Plaintiff’s complaint alleges as follows. On or about August 30, 2015, defendant Officer 27 Heather Gordon was dispatched to plaintiff’s residence based on a report that plaintiff may be 28 suicidal. (Doc. No. 1 (“Compl.”) at ¶ 11.) Officer Gordon encountered plaintiff sitting in the 1 1 threshold of the doorway of her home with her mother, Susan Birnbaum. (Id.) After confirming 2 plaintiff’s identity, Officer Gordon asked plaintiff to accompany her to a mental health facility. 3 (Id.) Plaintiff refused, and asked Officer Gordon for an explanation. (Id.) Officer Gordon then 4 attempted to take plaintiff into custody by grabbing plaintiff’s arm. (Id.) Officer Gordon did not 5 release plaintiff’s arm, even after plaintiff informed Officer Gordon that plaintiff’s arm was 6 injured. (Id.) Officer Gordon proceeded to grab one of plaintiff’s legs in addition to plaintiff’s 7 arm to pull plaintiff down the steps of her home. (Id.) Plaintiff’s mother, Ms. Birnbaum, told 8 Officer Gordon that plaintiff was disabled and that defendant Gordon was hurting plaintiff. (Id.) 9 Defendant Officer Doe 1 arrived on the scene at some point thereafter. (Id. at ¶ 12.) 10 Officer Gordon and/or Doe 1 started to force plaintiff’s arms behind her back, despite plaintiff’s 11 request to place the handcuffs in front of her body to avoid further injury to her arm. (Id.) 12 Officer Gordon and/or Doe 1 then punched plaintiff in the back, causing plaintiff to fall to her 13 knees. (Id.) Plaintiff cried and screamed in response to the pain to her arm. (Id.) Officer Doe 1 14 then asked plaintiff if she “would ‘behave’ as if she were a child.” (Id.) Officer Doe 1 and/or 15 Officer Gordon then handcuffed plaintiff with her arms in front of her body, and placed her inside 16 their patrol vehicle. (Id.) 17 Due to plaintiff’s complaints that she was in excruciating pain, Officer Gordon and/or 18 Officer Doe 1 took plaintiff to the hospital, where plaintiff was x-rayed. (Id. at ¶ 13.) Physicians 19 at the hospital reported that plaintiff had preexisting medical conditions, and had just sustained 20 new injuries to her knee, back, neck, and arm. (Id.) 21 Upon leaving the hospital, Officer Gordon and/or Doe 1 transported plaintiff to Calaveras 22 County Jail, where plaintiff was booked for public drunkenness and resisting arrest. (Id.) While 23 incarcerated, plaintiff continued to suffer pain from the injuries inflicted by defendants, but her 24 requests to be examined by a nurse at the jail were denied. (Id.) Plaintiff was seen by mental 25 health personnel, who completed documents with plaintiff and advised plaintiff that a counselor 26 would call her. (Id.) After sixteen hours in custody, plaintiff was released. (Id.) 27 28 Plaintiff initiated this action on August 27, 2017, alleging violation of her constitutional rights under § 1983 and related state law claims. On November 20, 2017, defendants filed a 2 1 motion to dismiss certain causes of action alleged in the complaint. (Doc. No. 5.) Plaintiff filed 2 her opposition to the motion to dismiss on December 28, 2017. (Doc. No. 8.) On December 29, 3 2017, the parties stipulated to transfer of venue, as the action was mistakenly initiated in the 4 Sacramento Division of this court. (Doc. No. 11.) Venue was thereafter transferred to the Fresno 5 Division on January 2, 2018. (Doc. No. 12.) Defendants filed their reply in support of the motion 6 to dismiss on January 4, 2018. (Doc. No. 15.) 7 LEGAL STANDARD 8 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 9 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 10 1983). A dismissal may be warranted where there is “the lack of a cognizable legal theory or the 11 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 12 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff must allege “enough facts to state a claim to 13 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A 14 claim is plausible on its face “when the plaintiff pleads factual content that allows the court to 15 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 16 Iqbal, 556 U.S. 662, 678 (2009). 17 In evaluating whether a complaint states a claim on which relief may be granted, the court 18 accepts as true the allegations in the complaint and construes the allegations in the light most 19 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United 20 States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court will not assume the truth of legal 21 conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 22 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, 23 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 24 statements, do not suffice.” Iqbal, 556 U.S. at 676. A complaint must do more than allege mere 25 “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” 26 Twombly, 550 U.S. at 555. 27 28 In ruling on such a motion, the court is permitted to consider material that is properly submitted as part of the complaint, documents that are not physically attached to the complaint if 3 1 their authenticity is not contested and the plaintiff’s complaint necessarily relies on them, and 2 matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). 3 ANALYSIS 4 Defendants advance the following arguments in moving to dismiss certain causes of 5 action alleged in plaintiff’s complaint: (1) Officer Gordon and Does 1–25 cannot be held liable 6 as to plaintiff’s Fourth Amendment claim under 42 U.S.C. § 1983 because defendants are entitled 7 to qualified immunity; (2) Does 26–50 cannot be held vicariously liable as to any of plaintiff’s 8 constitutional claims because 42 U.S.C. § 1983 does not allow for respondeat superior liability; 9 (3) plaintiff fails to state a claim under California’s Ralph Act, Civil Code § 51.7; (4) plaintiff 10 fails to state a claim for intentional infliction of emotional distress; (5) plaintiff fails to state a 11 claim under the Americans with Disabilities Act; and (6) plaintiff fails to allege sufficient facts to 12 support a claim for punitive damages. The court will address each of these arguments in turn 13 below. 14 A. Fourth Amendment Claim under 42 U.S.C. § 1983 15 Plaintiff’s first cause of action is against Officer Gordon and Does 1–25 for arresting 16 plaintiff without probable cause, and using excessive force while doing so, in violation of 42 17 U.S.C. § 1983. (Compl. at ¶¶ 20–26.) Defendants argue that dismissal of this first cause of 18 action is warranted because Officer Gordon is entitled to qualified immunity. (Doc. No. 5-1 at 3.) 19 Evaluating a claim of qualified immunity involves two inquiries: “(1) whether the 20 defendant violated a constitutional right, and (2) whether that right was clearly established at the 21 time of the alleged violation.” Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 945 (9th Cir. 22 2017). Courts have discretion to choose the order in which to answer these questions. Pearson v. 23 Callahan, 555 U.S. 223, 236 (2009). Plaintiff bears the burden under § 1983 to prove that Officer 24 Gordon’s conduct violated a clearly established constitutional right. Romero v. Kitsap County, 25 931 F.2d 624, 627 (9th Cir. 1991). Whether a right is “clearly established” is “whether it would 26 be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” 27 Davis v. City of Las Vegas, 478 F.3d 1048, 1056 (9th Cir. 2007) (quoting Saucier v. Katz, 533 28 U.S. 194, 202 (2001)); see also Thompson v. Rahr, 885 F.3d 582, 587 (9th Cir. 2018). 4 1 According to plaintiff, Officer Gordon violated plaintiff’s constitutional rights by seizing 2 and arresting her without probable cause and using excessive force in effecting that arrest. (Doc. 3 No. 9 at 3–4.) Defendants contend that a reasonable law enforcement officer, called to the scene 4 of a potentially suicidal person, could reasonably believe that taking that person into custody 5 upon refusal of medical intervention would be lawful, even if by physical force. (Doc. No. 5-1 at 6 4.) 7 Viewing the facts as alleged in the complaint in the light most favorable to plaintiff, the 8 only articulable fact available to Officer Gordon that indicated that plaintiff might be suicidal was 9 an initial report that did not provide further detail or corroboration. Plaintiff alleges that once 10 Officer Gordon arrived at plaintiff’s residence, Officer Gordon encountered plaintiff sitting on the 11 steps outside her home with her mother, “calmly conversing.” (Compl. at ¶ 11.) Upon 12 confirming plaintiff’s identity, Officer Gordon “immediately” asked plaintiff to accompany her to 13 a mental health facility. (Id.) Encountering resistance from plaintiff, Officer Gordon then used 14 physical force to pull plaintiff down the steps of her home and forcibly placed handcuffs on 15 plaintiff. (Id. at ¶¶ 11–12.) 16 Accepting these facts as true, defendants ask this court to dismiss plaintiff’s § 1983 claim 17 against Officer Gordon on the grounds that Officer Gordon could have reasonably believed that 18 the use of force in effecting plaintiff’s arrest was not violative of plaintiff’s constitutional rights. 19 The court cannot, however, make this determination without a fully developed factual record, 20 particularly where plaintiff has alleged facts suggesting that her arrest was made without probable 21 cause. Probable cause exists when “officers have knowledge or reasonably trustworthy 22 information to lead a person of reasonable caution to believe an offense has been or is being 23 committed by the person being arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 24 2007) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). While “conclusive evidence of guilt” is not 25 necessary, “[m]ere suspicion, common rumor, or even strong reason to suspect are not enough.” 26 Id. As alleged in the complaint, Officer Gordon sought to arrest plaintiff based merely on a report 27 that plaintiff was potentially suicidal, with no other reason to believe that was the case. The court 28 concludes plaintiff has plausibly alleged a constitutional violation. 5 Because plaintiff can plausibly allege that Officer Gordon’s actions were in violation of 1 2 plaintiff’s constitutional rights, the next inquiry for the court is whether that right was clearly 3 established at the time of the alleged violation. Isayeva, 872 F.3d at 945. Neither party has 4 referred the court to any legal authority regarding whether plaintiff’s rights were clearly 5 established in this specific context. Nonetheless, the court finds that plaintiff has alleged a clearly 6 established right to be free from detention without probable cause, where such probable cause 7 appears to consist solely of an unsubstantiated report. See Maag v. Wessler, 960 F.2d 773, 775 8 (9th Cir. 1991) (“Although there are few decisions that discuss the fourth amendment standard in 9 the context of seizure of the mentally ill, all have recognized the proposition that such a seizure is 10 analogous to a criminal arrest and must therefore be supported by probable cause.”); see also 11 United States v. Mendonsa, 989 F.2d 366, 368 (9th Cir. 1993) (“An anonymous tip, without more, 12 does not constitute probable cause.”) (citing Illinois v. Gates, 462 U.S. 213, 227 (1983)). Accepting the factual allegations of plaintiff’s complaint to be true, as this court must, it is 13 14 sufficient to state cognizable claims for an unlawful arrest in violation of the Fourth Amendment 15 and excessive use of force. Accordingly, the court finds that defendants are not entitled to 16 dismissal on qualified immunity grounds. 17 18 B. Supervisory Liability under 42 U.S.C. § 1983 Plaintiff’s third cause of action alleges supervisory liability under § 1983 for deliberate 19 indifference to the need for further training, supervision, and/or discipline of Officer Gordon and 20 Doe defendants 1–25. Defendants move to dismiss this cause of action on the grounds that there 21 is no respondeat superior liability under § 1983. (Doc. No. 5 at 4–5.) Plaintiff did not respond to 22 this motion in her opposition, instead appearing to conflate the pleading standards for supervisory 23 liability and municipal liability. (Doc. No. 8 at 4–5.) 24 A claim against a supervisory official in his or her individual capacity requires that 25 plaintiff plead that each defendant, through the official’s own individual actions, has violated the 26 Constitution. Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011). Here, plaintiff’s complaint 27 does not identify any individual supervisory defendant by name or position, nor does plaintiff 28 plead facts demonstrating specific actionable conduct on the part of any defendant. Conclusory 6 1 allegations of failure to train, supervise, or discipline, without more, are insufficient to state a 2 viable claim under this theory. See Preschooler II v. Clark Cty. Sch. Bd. of Trustees, 479 F.3d 3 1175, 1182–83 (9th Cir. 2007) (holding that the details of the individuals’ alleged misconduct, the 4 role of the officials, the knowledge and reporting duties of the officials, and their failure to take 5 corrective action was required to state a claim under the Ninth Circuit’s “limited supervisory 6 liability doctrine”). Therefore, the court will dismiss this cause of action. 7 C. Ralph Act The Ralph Act, codified at Civil Code § 51.7, protects a person’s right to be free from 8 9 violence or intimidation on account of “their sex, race, color, religion, ancestry, national origin, 10 disability, medical condition, genetic information, marital status, sexual orientation, citizenship, 11 primary language, or immigration status.” Cal. Civil Code §§ 51(b), (e); 51.7. A cause of action 12 under this section requires plaintiff to allege: (1) defendant threatened or committed violent acts 13 against the plaintiff; (2) the defendant was motivated by his perception of a protected 14 characteristic; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in 15 causing plaintiff’s harm. Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 880–81 16 (2007). Defendants contend that plaintiff’s fifth cause of action under the Ralph Act fails to state 17 a claim because the allegations are insufficient to establish prong two outlined above—that 18 Officer Gordon’s conduct was motivated by a perception of any disability of plaintiff. (Doc. No. 19 5 at 5.) 20 Plaintiff alleges that defendants committed violent acts against her “because of her 21 disability and/or psychiatric condition.” (Compl. at ¶ 55.) California Civil Code § 51(e) defines 22 “mental disability” consistent with California Government Code § 12926, which identifies, in 23 relevant part, a mental disability as “having any mental or psychological disorder or condition . . . 24 that limits a major life activity.” Cal. Gov. Code § 12926(j)(1). In her opposition to defendants’ 25 motion to dismiss plaintiff indicates that her Ralph Act claim is premised on her mental disability 26 of “being suicidal,” which plaintiff contends “limits the most major life activity there is: living 27 itself.” (Doc. No. 8 at 5.) 28 ///// 7 1 Defendants argue that permitting such a claim to proceed would imply that any time a law 2 enforcement officer is summoned to deal with a non-compliant, possibly suicidal individual, a 3 subsequent arrest of that individual must have been motivated by mental disability discrimination. 4 (Doc. No. 15 at 4.) The court disagrees. An officer may detain any person the officer determines, 5 “as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled,” 6 pursuant to § 5150 of the California Welfare and Institutions Code, where such detention is based 7 on probable cause. Bias v. Moynihan, 508 F.3d 1212, 1220 (9th Cir. 2007). When the authority 8 for such detention is exercised in accordance with the law, law enforcement officers are immune 9 from liability. Cal. Welf. & Inst. Code § 5278; see also Bias, 508 F.3d at 1221–22 (holding that a 10 plaintiff’s state law claims, including a claim under § 51.7 for racial discrimination, were barred 11 by § 5278, which precludes liability on the part of any individual authorized to detain a person 12 under § 5150, where the officer had probable cause to do so); Dorger v. City of Napa, No. 12-cv- 13 00440-WHO, 2013 WL 5804544 (N.D. Cal. Oct. 24, 2013) (“On its face, immunity [under § 14 5278] only applies if the detention was in accordance with the law.”). In contrast, here, plaintiff alleges that Officer Gordon’s conduct can be attributed to 15 16 mental disability discrimination because plaintiff’s arrest was not carried out in accordance with 17 the law. Plaintiff alleges that at the time of her arrest, the only information available to Officer 18 Gordon was a report indicating that plaintiff may be suicidal. (Compl. at ¶ 11.) Plaintiff alleges 19 that when Officer Gordon approached plaintiff, Officer Gordon had “no reason to do anything 20 other than speak with Farmer regarding the report she may be suicidal.” (Id.) However, “[r]ather 21 the [sic] investigate the report to corroborate it, Gordon immediately asked Farmer go [sic] to a 22 mental health facility with her.” (Id.) As alleged in the complaint, the only basis upon which 23 Officer Gordon chose to forcefully take plaintiff into custody was because Officer Gordon 24 perceived plaintiff to be suicidal. Plaintiff alleges that she was merely sitting on the front steps of 25 her home, “calmly conversing” with her mother. (Id.) The court finds that plaintiff’s complaint 26 alleges sufficient facts to state a cognizable claim under the Ralph Act. 27 ///// 28 ///// 8 1 D. Intentional Infliction of Emotional Distress Plaintiff’s seventh cause of action is for intentional infliction of emotional distress 2 3 (“IIED”). Defendants contend that plaintiff fails to state a claim for IIED because the alleged 4 conduct is not sufficiently outrageous. (Doc. No. 5 at 6–7.) Under California law, a claim for 5 IIED requires a plaintiff to establish “(1) extreme and outrageous conduct by the defendant with 6 the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) 7 the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate 8 causation of the emotional distress by the defendant’s outrageous conduct.” Christensen v. 9 Superior Court, 54 Cal.3d 868, 903 (1991). Conduct actionable as IIED must be so outrageous as 10 to “exceed all bounds of that usually tolerated in a civilized community.” Hughes v. Pair, 46 Cal. 11 4th 1035, 1050–51 (2009). While the court may, in certain instances, conclude the specific 12 conduct alleged is insufficiently outrageous to sustain such a claim as a matter of law, see 13 Davidson v. City of Westminster, 32 Cal. 3d 197, 210 (1982), this element of the claim is 14 commonly seen as a factual issue. See Yun Hee So v. Sook Ja Shin, 212 Cal. App. 4th 652, 672 15 (2013) (“Thus, whether conduct is ‘outrageous’ is usually a question of fact.”); Ragland v. U.S. 16 Bank Nat’l Ass’n, 209 Cal. App. 4th 182, 204 (2012) (“Whether conduct is outrageous is usually 17 a question of fact.”); Spinks v. Equity Residential Briarwood Apts., 171 Cal. App. 4th 1004, 1045 18 (2009) (“In the usual case, outrageousness is a question of fact.”); Hawkins v. Bank of Am. N.A., 19 No. 2:16-cv-00827-MCE-CKD, 2017 WL 590253, at *5 (E.D. Cal. Feb. 14, 2017). 20 Here, plaintiff has plausibly alleged that Officer Gordon took plaintiff into custody 21 without probable cause and in carrying out that arrest employed excessive force. Plaintiff also 22 alleges that in taking these actions, defendant disregarded plaintiff’s pleas that she was in pain, 23 and caused plaintiff to sustain new injuries to her knee, back, neck, and arm. Taking the facts 24 alleged as true, a reasonable jury could find the actions of defendants to be outrageous and 25 outside the bounds of what is usually tolerated by civilized society. Hughes, 46 Cal. 4th at 1050– 26 51. Defendants have not provided any authority to the contrary. Therefore, the court will deny 27 defendants’ motion to dismiss the IIED cause of action. 28 ///// 9 1 E. Americans with Disabilities Act 2 Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. 3 (“ADA”), provides that “no qualified individual with a disability shall, by reason of such 4 disability, be excluded from participation in or be denied the benefits of the services, programs, or 5 activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 6 12132. A cause of action under Title II of the ADA has four elements: (1) the plaintiff is an 7 individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the 8 benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either 9 excluded from participation in or denied the benefits of the public entity’s services, programs or 10 activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, 11 denial of benefits, or discrimination was by reason of the plaintiff’s disability. Thompson v. 12 Davis, 295 F.3d 890, 895 (9th Cir. 2002). In addition, the implementing regulations provide that 13 “[a] public entity shall make reasonable modifications in policies, practices, or procedures when 14 the modifications are necessary to avoid discrimination on the basis of disability, unless the 15 public entity can demonstrate that making the modifications would fundamentally alter the nature 16 of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). 17 The Ninth Circuit has found that Title II applies to arrests. Sheehan v. City & Cty. of San 18 Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in part on other grounds, cert. dismissed in 19 part sub nom. City & Cty. of San Francisco v. Sheehan, ___U.S.___, 135 S. Ct. 1765 (2015). 20 Courts have recognized a Title II claim in the context of an arrest where police “fail to reasonably 21 accommodate the person’s disability in the course of investigation or arrest, causing the person to 22 suffer greater injury or indignity in that process than other arrestees.” Id. 23 Plaintiff’s ninth cause of action brought under the ADA alleges that Officer Gordon 24 “failed to reasonably accommodate [plaintiff’s] disability in the course of contacting and seizing 25 her, causing her to suffer greater injury in the process than other detainees or arrestees.” (Compl. 26 at ¶ 95.) Defendants move to dismiss this cause of action on two grounds: first, disability must 27 be pled with factual specificity, which plaintiff failed to do; and second, plaintiff did not plead 28 sufficient facts to show that Officer Gordon knew that plaintiff was disabled, and Officer Gordon 10 1 therefore could not have acted on the basis of that disability. (Doc. No. 5 at 7–8.) 2 Defendants are correct that, with respect to her ADA claim, plaintiff has failed to plead 3 disability with factual specificity. See Bresaz v. County of Santa Clara, 136 F. Supp. 3d 1125, 4 1135–36 (N.D. Cal. 2015) (“[W]here . . . a party alleges that he or she is disabled under the ADA, 5 courts have generally required the party to plead the disability with some factual specificity.”). 6 Here, the complaint specifies only that plaintiff has a “mental illness, disability and medical 7 impairments that limited and/or substantially limited her ability to care for herself and control her 8 mental, medical, or physical health condition as defined under the ADA.” (Compl. at ¶ 88.) 9 Other parts of the complaint allude to physical disability in plaintiff’s arm, but only insofar as 10 plaintiff told Officer Gordon that her arm was “injured,” and plaintiff’s mother told Officer 11 Gordon that plaintiff “is disabled.” (Compl. at ¶ 11.) These allegations are conclusory in nature. 12 Moreover, other than its allegations that plaintiff requested that she be handcuffed with 13 her arms in front of her, her complaint does not specify what reasonable accommodation 14 defendants failed to make with respect to plaintiff’s disability in the course of her arrest. See Edd 15 v. County of Placer, No. 2:14-cv-02739-JAM-AC, 2015 WL 1747394 (E.D. Cal. Apr. 16, 2015) 16 (dismissing certain ADA claims because “the complaint does not explain how the [post-arrest 17 condition complained of] was related to his disability or how it could have been ameliorated by 18 an accommodation related to that disability”); Anaya v. Marin Cty. Sheriff, No. 13-cv-04090- 19 WHO, 2014 WL 6660415, at *11 (N.D. Cal. Nov. 24, 2014) (dismissing ADA claims because 20 complaint did not “explain how [plaintiff’s] disability created physical limitations or symptoms at 21 the time of her arrest and transportation so that she needed specifically identified reasonable 22 accommodations”). Accordingly, plaintiff’s ADA cause of action will be dismissed. 23 24 F. Punitive Damages Lastly, defendants argue that plaintiff has failed to allege sufficient facts to support an 25 award of punitive damages, because her allegation of excessive force “[is] not necessarily enough 26 to meet requisite standards for malicious, oppressive or reckless conduct which deters further 27 misconduct.” (Doc. No. 5 at 8.) Punitive damages are available for actions under § 1983 “when 28 the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves 11 1 reckless or callous indifference to the federally protected rights of others.” Dang v. Cross, 422 2 F.3d 800, 807 (9th Cir. 2005) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). California law 3 generally authorizes the award of punitive damages when it can be shown “by clear and 4 convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. 5 Code § 3294(a). California courts have generally construed this language to mean “intent to 6 injure or willful and conscious disregard of others’ rights.” Cruz v. HomeBase, 83 Cal. App. 4th 7 160, 167 (2000). 8 Assuming all of the facts alleged in plaintiff’s complaint are true, the court cannot 9 conclude that, as a matter of law, plaintiff would be unable to show that Officer Gordon exhibited 10 either a “reckless or callous indifference” or a “willful and conscious disregard” of plaintiff’s 11 rights. As noted above, the complaint alleges that Officer Gordon used force to take plaintiff into 12 custody, and continued to use such force despite statements from plaintiff and plaintiff’s mother 13 that plaintiff was in pain and had a pre-existing arm injury. (Compl. at ¶ 11.) When Officer 14 Gordon produced handcuffs, plaintiff requested that she be handcuffed with her arms in front of 15 her body to avoid injuring her arm further. (Id. at ¶ 12.) Plaintiff alleges that Officer Gordon 16 and/or Officer Doe 1 then punched plaintiff in the back, causing her to fall to her knees, and only 17 handcuffed plaintiff with her arms in front of her body after plaintiff cried and screamed in pain. 18 (Id.) It is alleged by plaintiff that, thereafter, defendants took her to a hospital, where physicians 19 diagnosed new injuries to plaintiff’s knee, back, neck, and arm. (Id. at ¶ 13.) In light of these 20 allegations, plaintiff’s punitive damages claim survives defendants’ motion to dismiss. 21 22 G. Leave to Amend For the reasons explained above, defendants’ motion to dismiss is denied, except as to 23 plaintiff’s third cause of action for supervisory liability under § 1983 and plaintiff’s ninth cause of 24 action under the ADA. As to those two claims, defendant’s motion is granted. The court has 25 carefully considered whether plaintiff may amend her complaint to state supervisory liability and 26 ADA claims upon which relief can be granted. “The court should freely give leave when justice 27 so requires.” Fed. R. Civ. P. 15(a). “Valid reasons for denying leave to amend include undue 28 delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan 12 1 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath 2 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 3 be freely given, the court does not have to allow futile amendments). 4 At this early stage of the litigation, the court cannot conclude that the granting of leave to 5 amend would be futile. Accordingly, plaintiff will be granted an opportunity to amend her 6 complaint as to the third and ninth causes of action in order to attempt to cure the deficiencies 7 noted in this order. 8 9 10 CONCLUSION For the reasons set forth above: 1. Defendants’ motion to dismiss (Doc. No. 5) is granted as to plaintiff’s third cause of 11 action for supervisory liability under 42 U.S.C. § 1983 and plaintiff’s ninth cause of action 12 under the Americans with Disabilities Act and Rehabilitation Act, with leave to amend; 13 2. Defendants’ motion to dismiss (Doc. No. 5) is denied in all other respects; and 14 3. If plaintiff wishes to amend her complaint to attempt to cure any of the deficiencies 15 identified in this order, she is directed to file with the court an amended complaint no later 16 than twenty-one days from the issuance of this order. 17 18 19 IT IS SO ORDERED. Dated: April 23, 2018 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 13