Kelley v. Allen, et al, No. 2:2010cv00557 - Document 22 (E.D. Cal. 2011)

Court Description: ORDER granting 20 Motion to Dismiss signed by Judge Garland E. Burrell, Jr on 5/3/11: Plaintiff is granted five (5) days from the date on which this order is filed to file an amended complaint. (Kaminski, H)
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Kelley v. Allen, et al Doc. 22 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 KATHRYN KELLEY, Plaintiff, 10 11 12 13 14 15 16 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) v. LARRY ALLEN, DISTRICT ATTORNEY OF SIERRA COUNTY, individually; SARAH WRIGHT, individually and in her capacity as VICTIM WITNESS ADVOCATE OF THE COUNTY OF SIERRA); THE COUNTY OF SIERRA; and DOES 1-25 inclusive, Defendants. ________________________________ 2:10-cv-00557-GEB-GGH ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 17 18 Defendants Larry Allen (“Allen”), Sarah Wright (“Wright”), and 19 the County of Sierra (“Sierra County”) (collectively referred to as 20 “Defendants”) each move for dismissal of Plaintiff’s First Amended 21 Complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). 22 Plaintiff alleges under 42 U.S.C. § 1983 that each Defendant violated 23 her right under the Fourth and Fourteenth Amendments. Plaintiff also 24 alleges under 42 U.S.C. § 1985 that each Defendant engaged in a 25 conspiracy to violate her civil rights. Plaintiff seeks damages based on 26 these claims, and declaratory and injunctive relief. Plaintiff has 27 failed to oppose the motions. For the reasons stated below, each 28 Defendant’s motion will be granted. 1 Dockets.Justia.com 1 I. Legal Standard 2 To avoid dismissal under Rule 12(b)(6), a plaintiff must 3 allege “enough facts to state a claim to relief that is plausible on its 4 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 5 has facial plausibility when the plaintiff pleads factual content that 6 allows the court to draw the reasonable inference that the defendant is 7 liable for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ----, 8 129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin to 9 a ‘probability requirement,’ but it asks for more than a sheer 10 possibility that a defendant has acted unlawfully.” Moss v. United 11 States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 12 129 S. Ct. at 1951). 13 In analyzing whether a claim has facial plausibility, “[w]e 14 accept as true all well-pleaded allegations of material fact, and 15 construe them in the light most favorable to the non-moving party.” 16 Daniels-Hall v. Nat’l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). 17 However, “the tenet that a court must accept as true all of the 18 allegations 19 conclusions.” Iqbal, 129 S. Ct. at 1949. “A pleading that offers ‘labels 20 and conclusions’ or ‘a formulaic recitation of the elements of a cause 21 of action will not do.’ Nor does a complaint suffice if it tenders 22 ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. 23 (quoting Twombly, 550 U.S. at 555, 557). “In sum, for a complaint to 24 survive a motion to dismiss, the non-conclusory ‘factual content,’ and 25 reasonable inferences from that content, must be plausibly suggestive of 26 a claim entitling the plaintiff to relief.” Moss, 572 F.3d at 969 27 (quoting Twombly, 550 U.S. at 557). contained in a complaint 28 2 is inapplicable to legal 1 II. Factual Allegations 2 Plaintiff, a resident of Calpine, California, has sued Allen, 3 the District Attorney of Sierra County; Wright, the Sierra County 4 “Victim 5 supervisor of [Allen and Wright]”. (First Am. Compl. (“FAC”) ¶¶ 4, 7, 8, 6 18.) Plaintiff alleges that starting in August of 2006, 7 Witness Advocate;” and Sierra County, “the employer and 11 every complaint or charge filed by [Plaintiff] against people who committed criminal acts against her . . . was disregarded by Allen and his coconspirators without properly investigating or evaluating her claims. In fact out of over 50 complaints filed by [Plaintiff], zero cases were filed despite recommended charges filed by the Sierra County Sheriff after they [sic] investigated the complaints made by [Plaintiff]. 12 Id. 4:3-9. Plaintiff also alleges that Allen “simultaneously prosecuted 13 her to the fullest extent of the law for infraction offenses and other 14 offenses without probable cause.” Id. ¶ 11. Plaintiff further alleges 15 that after she was sexually assaulted in September 2006, “Wright refused 16 to aid [Plaintiff] as a victim of a sexual battery.” Id. ¶ 22. 8 9 10 17 18 III. Discussion A. § 1983 Claims against Wright 19 Wright argues Plaintiff’s § 1983 claims against her are time- 20 barred. “The statute of limitations for § 1983 claims is borrowed from 21 the analogous state statute of limitations for personal injury actions; 22 in California, that limitation period is two years” from the date of 23 accrual. Paramount Contractors and Developers, Inc. v. City of Los 24 Angeles, No. CV 08-5653 ABC (PLAx), 2011 WL 333472, at *4 (C.D. Cal. 25 Jan. 28, 2011) (citing CAL . CIV . PROC . CODE § 335.1 and Silva v. Crain, 169 26 F.3d 608, 610 (9th Cir. 1999)). 27 28 While state law determines the period of limitations, federal law determines when a cause of action accrues. Under federal law a cause of action accrues, and the statute of limitations begins to 3 1 run, when a plaintiff knows or has reason to know of the injury that is the basis of the action. 2 3 Alexopulos By and Through Alexopulos v. San Francisco Unified Sch. 4 Dist., 817 F.2d 551, 555 (9th Cir. 1987) (internal citation omitted). 5 Here, Plaintiff alleges that in September of 2006 Wright 6 “refused to aid [Plaintiff] as a victim of a sexual battery” after 7 Plaintiff reported she was sexually assaulted. (FAC ¶ 22.) The face of 8 this allegation shows that Plaintiff’s § 1983 claims against Wright 9 accrued no later than September of 2006. However, Plaintiff did not 10 commence this action until March 9, 2010, and Plaintiff has not alleged 11 facts indicating the statute of limitations period should be tolled. 12 Therefore, Plaintiff’s § 1983 claims against Wright are barred by the 13 statute of limitations and are dismissed. 14 B. § 1983 Claims against Allen 15 Allen seeks dismissal of Plaintiff’s § 1983 claims against 16 him, arguing absolute prosecutorial immunity shields him from those 17 claims since “Plaintiff’s claims focus on [Allen’s] prosecution of 18 Plaintiff 19 Plaintiff.” (Mot. 8:6-7.) “[I]t is well established that a prosecutor 20 has absolute immunity for the decision to prosecute[.]” Roe v. City & 21 Cnty. of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997). Further, “a 22 prosecutor is entitled to absolute immunity for the decision not to 23 prosecute.” Id. and his alleged failure to prosecute claims brought by 24 Since Plaintiff’s § 1983 claims against Allen concern Allen’s 25 decisions of whether or not to prosecute Plaintiff or to prosecute other 26 persons based on claims filed by Plaintiff, Allen prevails on his 27 absolute prosecutorial immunity defense. Therefore, Plaintiff’s § 1983 28 claims against Allen are dismissed. 4 1 C. § 1983 Claims against Sierra County 2 Sierra County argues Plaintiff’s § 1983 claims against it 3 should be dismissed since “Plaintiff has failed to identify any specific 4 policy or practice . . . that resulted in the purported violation of her 5 constitutional 6 constitutional violations under § 1983 only if the individual officer 7 who committed the violation was acting pursuant to a local policy, 8 practice or custom.” King Cnty. v. Rasmussen, 299 F.3d 1077, 1089 (9th 9 Cir. 2002). “[T]here must be ‘a direct causal link between a municipal 10 policy or custom and the alleged constitutional deprivation.’” Villegas 11 v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) 12 (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). rights.” (Mot. 18:4-5.) “Counties are liable for 13 Plaintiff alleges in a conclusory manner that Sierra County 14 engaged in a “systematic failure . . . to assure proper training and 15 supervision 16 procedures to discourage lawless official conduct.” (FAC ¶ 17.) “A local 17 governmental entity’s failure to train its employees can . . . create § 18 1983 19 indifference to the rights of persons’ with whom those employees are 20 likely to come into contact.” Lee v. City of Los Angeles, 250 F.3d 668, 21 681 (9th Cir. 2001) (quoting City of Canton, 489 U.S. at 388-89). 22 However, Plaintiff “does not identify what the training and hiring 23 practices were, how the training and hiring practices were deficient, or 24 how the training and hiring practices caused Plaintiff[’s] harm.” Young 25 v. City of Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009). 26 Therefore, Plaintiff’s allegations are insufficient to state plausible 27 failure to train and/or supervise claims against Sierra County. of liability their where [sic] the personnel failure 28 5 to or train to implement ‘amounts to meaningful deliberate 1 Plaintiff also alleges that unnamed “Officials and 2 Supervisors” who “were in the position to set and direct policy of the 3 County . . . . allowed the illegal unimmunized activities [of Allen and 4 Wright] to continue in violation of [Plaintiff’s] rights” despite 5 “knowing that they [sic] actions were done illegally.” Id. ¶¶ 19, 74. “A 6 municipality may be held liable for a constitutional violation if a 7 final policymaker ratifies a subordinate’s actions.” Lytle v. Carl, 382 8 F.3d 978, 987 (9th Cir. 2004). However, “[t]o show ratification, a 9 plaintiff must show that the ‘authorized policymakers approve a 10 subordinate’s decision and the basis for it.’” Id. (quoting Christie v. 11 Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999)). “A mere failure to overrule 12 a subordinate’s actions, without more, is insufficient to support a § 13 1983 claim.” Id. Since Plaintiff does not allege that the unnamed 14 Supervisors and Officials approved specific constitutional violations, 15 her allegations are insufficient to state plausible claims against 16 Sierra County for policymaker ratification of a subordinate’s actions. 17 Therefore, 18 dismissed. 19 D. § 1985 Claim Plaintiff’s § 1983 claims against Sierra County are 20 Each Defendant argues Plaintiff’s § 1985 claim for conspiracy 21 to commit civil rights violations should be dismissed since “Plaintiff 22 fails 23 “Plaintiff fails to allege any ‘class-based discriminatory animus’ as 24 required by [§ 1985].” (Mot. 13:16, 13:28-14:1.) “To state a claim for 25 conspiracy to violate constitutional rights, ‘the plaintiff must state 26 specific facts to support the existence of the claimed conspiracy.’” 27 Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929 (9th Cir. 2004) 28 (quoting Burns v. Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989). “In to state any facts specific 6 to an actual conspiracy,” and 1 addition, an indispensable element of [a § 1985] conspiracy claim is 2 ‘some 3 discriminatory animus behind the conspirators’ action.’” Wells v. Bd. of 4 Trustees of California State Univ., 393 F. Supp. 2d 990, 996 (N.D. Cal. 5 2005) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). racial, or perhaps otherwise class-based, invidiously 6 Plaintiff has not alleged sufficient facts to support the 7 existence of a conspiracy since she has not alleged the existence “of an 8 agreement 9 rights.” Olsen, 363 F.3d at 929-930. Further, Plaintiff alleges in a 10 conclusory manner that: “The sole purpose of [the] conspiracy was to 11 ruin [Plaintiff].” (FAC ¶ 79.) Therefore, Plaintiff has not stated a 12 plausible § 1985 claim, and this claim is dismissed. amongst 13 the [Defendants] to violate her constitutional IV. Conclusion 14 For the stated reasons, each Defendant’s motion to dismiss is 15 granted. Plaintiff is granted five (5) days from the date on which this 16 order is filed to file an amended complaint addressing the deficiencies 17 of the claims in her First Amended Complaint. Further, Plaintiff is 18 notified the First Amended Complaint may be dismissed with prejudice 19 under Federal Rule of Civil Procedure 41(b) if she does not file an 20 amended complaint within this prescribed time period. 21 Dated: May 3, 2011 22 23 24 GARLAND E. BURRELL, JR. United States District Judge 25 26 27 28 7