Tomada v. Spagnoli, No. 2:2010cv00856 - Document 43 (E.D. Cal. 2010)
Court Description: ORDER denying 30 Dft's Motion to Dismiss, signed by Judge Garland E. Burrell, Jr., on 7/28/10. (Kastilahn, A)
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Tomada v. Spagnoli Doc. 43 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 JOSEPH TOMADA, Plaintiff, 8 v. 9 10 11 12 ) ) ) ) ) ) ) ) ) ) ) SANDRA SPAGNOLI, DOES 1-20, inclusive, Defendants. ________________________________ 2:10-cv-00856-GEB-DAD ORDER DENYING DEFENDANT’S MOTION TO DISMISS 13 Defendant Sandra Spagnoli (“Defendant”) moves for dismissal of 14 Plaintiff’s Amended Complaint under Federal Rule of Civil Procedure 15 12(b)(6) (“Rule 12(b)(6)”), arguing Plaintiff has failed to allege 16 sufficient 17 defendants are entitled to qualified immunity. For the reasons stated 18 below, the motion is DENIED. facts to state viable claims, and in the alternative, I. LEGAL STANDARD 19 20 A Rule 12(b)(6) dismissal motion tests the legal sufficiency 21 of the claims alleged in the complaint. Novarro v. Black, 250 F.3d 729, 22 732 (9th Cir. 2001). 23 statement of the claim showing that the pleader is entitled to relief 24 . . . .” 25 defendant fair notice of what the [plaintiff’s] claim is and the grounds 26 upon which relief rests . . . .” 27 U.S. 544, 555 (2007). A pleading must contain “a short and plain Fed. R. Civ. P. 8(a)(2). The complaint must “give the Bell Atlantic Corp. v. Twombly, 550 28 1 Dockets.Justia.com 1 Dismissal of a claim under Rule 12(b)(6) is appropriate only 2 where the complaint either 1) lacks a cognizable legal theory, or 2) 3 lacks factual allegations sufficient to support a cognizable legal 4 theory. Balistreri v. Pacific Police Dept., 901 F.2d 696, 699 (9th Cir. 5 1988). To avoid dismissal, the plaintiff must allege “only enough facts 6 to state a claim to relief that is plausible on its face.” 7 U.S. at 547. Twombly, 550 8 In deciding a Rule 12(b)(6) motion, the material allegations 9 of the complaint are accepted as true and all reasonable inferences are 10 drawn in favor of the plaintiff. 11 956 (9th Cir. 2009). 12 conclusions are entitled to a presumption of truth. 13 Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Twombly, 550 U.S. at 555. “In 14 sum, for a complaint to survive a motion to dismiss, the nonconclusory 15 ‘factual content,’ and reasonable inferences from that content, must be 16 plausibly suggestive of a claim entitling the plaintiff to relief.” Moss 17 v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). See al-Kidd v. Ashcroft, 580 F.3d 949, However, neither conclusory statements nor legal 18 See Ashcroft v. II. BACKGROUND 19 Plaintiff alleges several as yet unidentified City of Benicia 20 police officers violated his right to substantive due process when they 21 failed to protect him from being attacked by intoxicated assailants. 22 Plaintiff alleges in his Amended Complaint that he was “enjoying an 23 evening out with family and friends” in Benicia, California, and “was 24 accosted” by a number of intoxicated patrons as he was leaving a 25 nightclub. (Am. Compl. ¶ 6.) 26 Plaintiff alleges that he “sought, and received, assistance 27 from” City of Benicia police officers. (Id., ¶ 7.) 28 the officers intervened, they learned “that one of the drunk patrons was 2 Plaintiff alleges as 1 illegally carrying a concealed knife” and that “the drunk patrons 2 intended 3 Plaintiff further alleges the officers “resolved the situation by 4 telling plaintiff and the drunk patrons to ‘walk away’ in different 5 directions,” which required Plaintiff “to walk down a dark, desolate 6 street 7 protested, telling the officers “he would be safer if he just went back 8 inside the club or waited in a lit area for someone to pick him up,” but 9 the officers “unequivocally told [him] to walk away.” (Id., ¶ 13.) 10 Plaintiff alleges after the officers left the scene, “the drunk, knife- 11 wielding patrons found [him] as he was walking down the... street, 12 chased him down and attacked him with a knife. As a result, plaintiff 13 permanently lost his vision and was confined to a bed for almost a 14 year.” (Id., ¶ 16.) 15 at to use the nighttime.” illegal (Id., knife ¶¶ on plaintiff.” 11-12.) Plaintiff (Id., alleges ¶¶ 8-9.) that he III. DISCUSSION 16 Plaintiff alleges two federal claims under 42 U.S.C. § 1983 17 (“§ 1983") in his Amended Complaint. 18 claim that unidentified City of Benicia police officers violated his 19 “Fourth Amendment” right by failing to protect him from being battered 20 by a drunk nightclub patron. 21 is made under the Fourth Amendment, the wording of the allegations in 22 this claim, i.e. “defendant officers caused plaintiff to be subjected to 23 a deprivation of liberty and/or property interest,” and Plaintiff’s 24 arguments in his opposition to the dismissal motion show this claim is 25 a Fourteenth Amendment substantive due process claim. (Am. Compl. ¶ 24, 26 and Pl. Mem. of P.&A. in Opp’n to Def.’s Mot. to Dismiss (“Opp’n”) 2:12- 27 13.) Plaintiff alleges in his first Although Plaintiff states his first claim 28 3 1 Plaintiff’s second claim is alleged against Defendant Spagnoli 2 and Doe defendants for “deficient policies, practices, procedures, and 3 other protocols regarding the training of officers.” (Am. Compl. ¶¶ 27- 4 32.) 5 and is based upon Plaintiff’s allegation that his injuries were the 6 result of the City of Benicia’s inadequate training “in regard to 7 responding to situations like the one alleged [in his complaint].” (Id., 8 ¶ 28.) 9 Chief of Police and is “responsible for all policies, instruction, The second claim incorporates the allegations in the first claim Plaintiff alleges Defendant Spagnoli is the City of Benicia’s 10 training 11 supervising City of Benicia Police Officers. (Id., ¶¶ 4, 17.) 12 A. and other protocol...” in the employing, training and Substantive Due Process Claim Against Doe Police Officers 13 Defendant has not shown she has standing to seek dismissal of 14 Plaintiff’s first claim since she is not named as a defendant in this 15 claim. Therefore, Defendant’s motion to dismiss Plaintiff’s first claim 16 is denied. See Newson v. Countrywide Home Loans, Inc., No. C 09-5288 17 SBA, 2010 WL 2034769, at *3 (N.D. Cal. May 19, 2010) (denying dismissal 18 motion as to claim in which the moving party was not named as a 19 defendant). 20 B. Failure to Train Claim Against Defendant and Does 21 Defendant argues Plaintiff’s “failure to train” claim should 22 be dismissed because Plaintiff has not alleged the deprivation of a 23 constitutional right, which is necessary to state a “Monell claim.” 24 (Def.’s Mot. to Dismiss (“Mot.”) 17:18-20.) Specifically, Defendant 25 argues the Due Process Clause generally does not require the government 26 to protect people from harm by third parties, and Plaintiff has “failed 27 to allege facts sufficient to demonstrate” that his alleged battery 28 falls within the two exceptions, which create a duty to protect, i.e. 4 1 the existence of a “special relationship” or that the police created or 2 exacerbated a dangerous situation. (Mot. 8:25-28, 9:9-15.) Defendant 3 further argues that “the [alleged] conduct of the defendant police 4 officers... does not rise to the level of ‘deliberate indifference,’ to 5 [Plaintiff’s] constitutional rights,” an element Defendant contends 6 Plaintiff is required to allege. (Mot. 18:9-11.) 7 Plaintiff rejoins that he has properly plead “that defendants 8 had a duty to act because they assumed a custodial relationship toward 9 the plaintiff and because they affirmatively placed plaintiff in a 10 position of danger.” (Opp’n 4:7-9.) 11 1. 12 Defendant’s categorization of Plaintiff’s second claim as a The capacity in which Defendant Spagnoli is sued 13 “Monell 14 procedures regarding the training of officers,” presumes she has been 15 sued in her official capacity. (Mot. 16:11-14, 17:2-4.) However, a 16 failure to train claim can also be alleged against a supervisory 17 defendant in her individual capacity. See Corales v. Bennett, 567 F.3d 18 554, 570 (9th Cir. 2009) (citing 19 1113, 1149 (9th Cir. 2005)). Since the Amended Complaint is silent 20 concerning the capacity in which Plaintiff is suing Defendant, it is 21 construed liberally to allege that Defendant is named in both her 22 official and individual capacities. See Shaughnessy v. Hawaii, No. 09- 23 00569 JMS/BMK, 24 Sierzega v. Ashcroft, 440 F.Supp.2d 1198, 1208 (D. Or. 2006). cause of action,” for “deficient policies, practices and Menotti v. City of Seattle, 409 F.3d 2010 WL 2573355, at *3 (D. Hawai’i June 24, 2010); 25 2. 26 To state a “failure to train” claim against an official in 27 either his or her individual or official capacity, Plaintiff must allege 28 the underlying deprivation of a constitutional right. Merritt v. County Underlying Deprivation of a Constitutional Right 5 1 of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989) (discussing the 2 elements of a “failure to train” claim against a municipality); Menotti 3 v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005) (stating a 4 supervisory defendant must have either “taken part in the alleged 5 constitutional 6 through their individual actions to be exposed to liability in her 7 individual capacity). violations or caused the constitutional violations” 8 Here, Plaintiff alleges the City’s inadequate training of its 9 police officers resulted in a violation of his substantive due process 10 right, i.e. his assault by intoxicated third parties. (Am. Compl. ¶ 24; 11 Opp’n 2:12-13.) The Fourteenth Amendment “Due Process Clauses generally 12 confer no affirmative right to governmental aid, even where such aid may 13 be necessary to secure life, liberty, or property interests of which the 14 government itself may not deprive the individual.” DeShaney v. Winnebago 15 County Dept. Of Social Services, 489 U.S. 189, 196 (1989). 16 two exceptions to this general rule: 1) the “special relationship” 17 exception and 2) the “danger creation” 18 City of Page, Arizona, 257 F.3d 1086, 1090-91 (9th Cir. 2001). 19 i. There are exception. Estate of Amos v. Special Relationship Exception 20 The “special relationship” exception is applicable when the 21 government enters into a “custodial” relationship with a party, such as 22 taking the party into custody or placing him or her into involuntary 23 hospitalization. Huffman v. County of Los Angeles, 147 F.3d 1054, 1058- 24 59 (9th Cir. 1998). 25 26 27 28 Plaintiff argues the following allegations are sufficient to allege a “special relationship:” [P]laintiff was not free to leave while police interceded in the situation. Therefore, plaintiff was in officers’ custody from that point onward. 6 1 Therefore, there existed a ‘special relationship’ between plaintiff and the officers at that point, for purposes of establishing the officers’ duty to act under 42 U.S.C. section 1983. 2 3 (Am. Compl. ¶ 10.) 4 These conclusory allegations do not support the existence of 5 a “special relationship” between him and the Doe police officers. Even 6 if Plaintiff was “not free to leave” while the police responded to the 7 situation, Plaintiff alleges he was injured “[a]fter defendant officers 8 left the scene.” (Id., ¶ 15.) 9 ii. Danger Creation Exception 10 The “danger creation” exception is applicable when “the 11 [government] affirmatively places the plaintiff in a dangerous 12 situation.” Estate of Amos, 257 F.3d at 1091. Consideration of the 13 “danger creation” exception in context of law enforcement inaction 14 focuses on “whether the officers left [plaintiff] in a situation that 15 was more dangerous than the one in which they found him.” Id.; see also 16 Johnson v. City of Seattle, 474 F.3d 634, 639 (9th Cir. 2007) 17 (summarizing Ninth Circuit cases that apply the “danger creation” 18 exception); Munger v. City of Glasgow Police Dept., 227 F.3d 1082, 108719 88 (9th Cir. 2000) (applying the “danger creation” exception when police 20 officers “ejected [plaintiff] from a bar late at night when the outside 21 temperatures were subfreezing[, knew plaintiff] was wearing only a t22 shirt and jeans, was intoxicated, was prevented by the officers from 23 driving his truck or reentering [the bar], and was walking away from the 24 nearby open establishments.”) 25 Here, Plaintiff contends the following allegations are 26 sufficient to allege a duty to protect under the “danger creation” 27 exception: 28 7 1 Officers resolved the situation by telling plaintiff and the drunk patrons to “walk away” in different directions. Officers’ orders required plaintiff to walk down a dark, desolate street at nighttime, when an angry, drunk, knife-wielding assailant was looking for him. Plaintiff protested, and told the officers that he would be safer if he just went back inside the club or waited in a lit area for someone to pick him up. Officers unequivocally told plaintiff to walk away in the direction mentioned in the preceding paragraph. Officers’ orders therefore placed plaintiff in a more dangerous situation in which they found him, thereby establishing a “danger exception” for purposes of establishing the officers’ duty to act under 42 U.S.C. section 1983. 2 3 4 5 6 7 8 9 10 (Id., ¶¶ 11-14.) 11 Plaintiff’s allegations sufficiently state circumstances to 12 support the application of the “danger creation” exception. Plaintiff 13 alleges he was “accosted” by “a number of drunk patrons” before the 14 police 15 ordering him “to walk down a dark, desolate street at nighttime” and 16 preventing him from reentering the bar. (Id., ¶ 13.) responded, and that the police worsened his situation by 17 Defendant argues Plaintiff’s above-described allegations are 18 inconsistent with the allegation in his original Complaint that the 19 “defendant officers instructed plaintiff to simply walk away.” (Id., 20 15:11-23.) Therefore, Defendant contends Plaintiff’s newly asserted 21 facts “should not be permitted to... correct fatal pleading defects....” 22 (Id., 15:24-25, 15:27-16:4.) However, Defendant has not shown that this 23 argument justifies dismissal of this claim, in light of the applicable 24 pleading standard. 25 3. 26 Defendant Deliberate Indifference further argues that Plaintiff’s “conclusory 27 allegation that the defendant police officers acted with deliberate 28 indifference . . . is insufficient to show that an individual was 8 1 personally involved in the deprivation of [plaintiff’s] civil rights.” 2 (Mot. 18:11-16.) 3 To state a § 1983 claim against a government official for 4 injuries caused by a third party under the danger creation exception, 5 “the plaintiff must show that the [government] official... acted with 6 deliberate indifference to [a] known or obvious danger....” L.W. v. 7 Grubbs, 92 F.3d 894, 900 (9th Cir. 1996). “‘Deliberate indifference’ is 8 a stringent standard of fault, requiring proof that a municipal actor 9 disregarded a known or obvious consequence of his actions.” Kennedy v. 10 City of Ridgefield, 439 F.3d 1055, 1064 (9th Cir. 2006). 11 Here, Plaintiff alleges the defendant Doe police officers 12 acted with deliberate indifference by ordering him to walk down a “dark, 13 desolate street at nighttime,” knowing both that one of the drunk 14 patrons “was illegally carrying a concealed knife,” and that the patrons 15 “intended to use the illegal knife on plaintiff.” These allegations are 16 sufficient 17 indifference since they support that the officers disregarded a known 18 consequence of their actions, i.e. “that plaintiff would be assaulted 19 and battered by the knife-wielding, drunk patrons.” (Am. Compl. ¶¶ 8-9, 20 12, 15.) 21 C. to state that the Doe officers acted with deliberate Qualified Immunity 22 Defendant argues in the alternative that “the defendants are 23 entitled to qualified immunity from [Plaintiff’s] claims....” because 24 Plaintiff has failed to allege “any one of the officers deprived him of 25 a constitutional right,” or “that the conduct of any of the defendants 26 was unreasonable in light of clearly established law.” (Mot. 19:25- 27 20:3.) Plaintiff counters that defendants are not entitled to qualified 28 immunity because “it is both a constitutional violation, and indeed a 9 1 well-established one, to allow someone to be egregiously assaulted when 2 there is a special relationship between the officer and the victim. 3 (Opp’n 7:23-25.) 4 Defendant has not shown that she is entitled to qualified 5 immunity at this stage in the proceedings. Although Defendant argues 6 “the defendants are entitled to qualified immunity,” Defendant has not 7 shown how she has standing to raise this affirmative defense on behalf 8 of the as yet unknown Doe defendants. 9 is sued in her official capacity, qualified immunity is not an available 10 affirmative defense. Kentucky v. Graham, 473 U.S. 159, 166 (1985). 11 Moreover, Defendant has not shown she is entitled to qualified immunity 12 in her individual capacity “on [the] non-existent factual record” in 13 this case. 14 Therefore, Defendant’s qualified immunity dismissal motion is denied. 15 See McReaken v. Schriro, No. CV 09-327-PHX-DGC, 2010 WL 1873104, at *4 16 (D. Ariz. May 5, 2010) (holding defendants not entitled to qualified 17 immunity at motion-to-dismiss stage); and Anoushiravania v. Fishel, No. 18 CV 19 (deferring decision on defendants’ qualified immunity until summary 20 judgment stage). Further, to the extent Defendant Kwai Fun Wong v. U.S., 373 F.3d 952, 956-57 (9th Cir. 2004). 04-212-MO, 2004 21 WL 1630240, at *10-11 (D.Or. July For the stated reasons, Defendant’s motion to dismiss is 23 denied. 24 Dated: July 28, 2010 25 27 2004) IV. CONCLUSION 22 26 19, GARLAND E. BURRELL, JR. United States District Judge 28 10
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