Warren v. City of Grass Valley et al, No. 2:2010cv01650 - Document 19 (E.D. Cal. 2010)

Court Description: ORDER granting 7 Motion to Dismiss signed by Judge John A. Mendez on 12/10/10. Defendant City of Grass Valley is dismissed from this case. (Kaminski, H)
Download PDF
Warren v. City of Grass Valley et al Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 ROY WARREN, ) ) Plaintiff, ) ) v. ) ) CITY OF GRASS VALLEY, a public ) entity; WILLIAM BUTLER, in his ) individual and official capacity ) as an employee of the CITY OF ) GRASS VALLEY; DOES 1 through 3 ) in their individual and official ) capacities; DOES 4 through 29; ) and DOES 30 through 50 ) ) Defendants. ) ) Case No. 10-cv-1650-JAM-EFB Order Granting Defendant City of Grass Valley s Motion to Dismiss This matter comes before the Court on Defendant City of Grass 20 21 Valley s (“Defendant s”) Motion to Dismiss (Doc. 7) Plaintiff Roy 22 Warren s (“Plaintiff s” ) Complaint (Doc. 1), for failure to state 23 a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). 24 Plaintiff opposes the motion (Doc. 11). 25 hearing on September 1, 2010, and ordered submitted on the briefs.1 26 For the reasons set forth below, Defendant s motion is granted. 27 28 This matter was set for a 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). 1 Dockets.Justia.com 1 2 I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff s complaint was originally filed in the Nevada 3 County Superior Court. 4 Court by Defendant (Doc. 1). 5 claims for relief against Defendant under 42 U.S.C. § 1983 6 (“Section 1983”), and additional state law claims for relief for 7 violation of California Civil Code Section 52.1, personal injury, 8 intentional infliction of emotional distress and negligent 9 infliction of emotional distress, against defendant William Butler 10 11 The complaint was removed to the District Plaintiff s complaint alleges two (“Butler”), not a party to this motion. The complaint alleges that beginning in 1969 or 1970, when 12 Plaintiff was approximately eleven years old, and continuing until 13 approximately 2007, Butler repeatedly committed acts of sexual 14 molestation upon Plaintiff. 15 police officer employed by Defendant. 16 Butler acted under color of law, committing the acts of molestation 17 while in uniform and on duty as a police officer for Defendant. 18 The complaint alleges that Defendant was responsible for the 19 supervision, control and training of its employees, including 20 Butler. 21 weapons and used his position of power as a police officer to 22 intimidate and manipulate Plaintiff. 23 repeated acts of molestation as a minor caused him serious mental 24 injuries, including post traumatic stress disorder, depression, 25 mood swings, fear and suicidal ideation. 26 also suffered from disassociation as a result of the molestation, 27 and was only able to perceive the injurious nature of Butler s 28 actions after beginning therapy in 2008. Between 1972 and 1979, Butler was a The complaint alleges that The complaint further alleges that Butler displayed 2 Plaintiff alleges that the Plaintiff alleges that he Plaintiff commenced this 1 lawsuit in 2010. Defendant now moves to dismiss the two Section 2 1983 claims that are brought against it. 3 II. OPINION 4 A. Legal Standard 5 Motion to Dismiss 6 A party may move to dismiss an action for failure to state a 7 claim upon which relief can be granted pursuant to Federal Rule of 8 Civil Procedure section 12(b)(6). 9 dismiss, the court must accept the allegations in the complaint as 10 true and draw all reasonable inferences in favor of the plaintiff. 11 Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other 12 grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 13 U.S. 319, 322 (1972). 14 conclusions,” however, are not entitled to the assumption of truth. 15 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), citing Bell Atl. 16 Corp. v. Twombly, 550 U.S. 544, 555 (2007). 17 dismiss, a plaintiff needs to plead “enough facts to state a claim 18 to relief that is plausible on its face.” 19 570. 20 claim supportable by a cognizable legal theory. 21 Pacifica Police Dep t, 901 F.2d 696, 699 (9th Cir. 1990). 22 In considering a motion to Assertions that are mere “legal To survive a motion to Twombly, 550 U.S. at Dismissal is appropriate where the plaintiff fails to state a Balistreri v. Upon granting a motion to dismiss for failure to state a 23 claim, the court has discretion to allow leave to amend the 24 complaint pursuant to Federal Rule of Civil Procedure section 25 15(a). 26 appropriate unless it is clear . . . that the complaint could not 27 be saved by amendment.” 28 316 F.3d 1048, 1052 (9th Cir. 2003). “Dismissal with prejudice and without leave to amend is not Eminence Capital, L.L.C. v. Aspeon, Inc., 3 1 Section 1983 2 To prevail in this 42 U.S.C. § 1983 civil action against 3 4 Defendant plaintiff must show that 8 (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. Accordingly, the conduct complained of must have deprived the plaintiff of some right, privilege or immunity protected by the Constitution or laws of the United States. 9 Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 5 6 7 10 11 Cir. 2005) (internal citations omitted). Municipal governments may only be sued under Section 1983 for 12 their unconstitutional or illegal policies. 13 for the acts of their employees. 14 Services, 436 U.S. 658, 694 (1978) (holding that “a local 15 government may not be sued under §1983 for an injury inflicted 16 solely by its employees or agents. 17 of a government s policy or custom, whether made by its lawmakers 18 or by those whose edicts or acts may fairly be said to represent 19 official policy, inflicts the injury that the government as an 20 entity is responsible under §1983”). 21 establish Monell liability by showing that “[a] local governmental 22 entity s failure to train its employees . . . „amounts to 23 deliberate indifference to the rights of persons with whom those 24 employees are likely to come into contact.” 25 Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (quoting City of Canton 26 v. Harris, 489 U.S. 378, 388 (1989)). Monell v. Department of Social 27 28 B. Cities may not be sued Claims for Relief 4 Instead, it is when execution A plaintiff may also Lee v. City of Los 1 1. Violation of Section 1983, First Claim for Relief 2 The first claim for relief is brought against all defendants, 3 including defendant and moving party herein, City of Grass Valley. 4 The claim alleges that “Defendants” violated Plaintiff s Fourth and 5 Fourteenth Amendment rights by repeatedly subjecting him to 6 unreasonable seizure and excessive and unreasonable force by 7 repeatedly committing and/or allowing acts of sexual molestation 8 upon Plaintiff. 9 allegations pertaining to Butler and allegations pertaining to The complaint does not distinguish between 10 Defendant. 11 because it is barred by the statute of limitations, Plaintiff has 12 failed to file the requisite Certificate of Merit, and the 13 complaint fails to state allegations necessary to maintain a claim 14 against Defendant. 15 Defendant argues that the claim should be dismissed In determining the proper statute of limitation for actions 16 brought under 42 U.S.C. § 1983, courts look to the statute of 17 limitations for personal injury actions in the forum state. 18 Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). 19 Circuit has held that California s one year-statute of limitations 20 for personal injury actions applies to 1983 suits in federal court. 21 Id. (citing DeGrassi v. City of Glendora, 207 F.3d 636, 644 (9th 22 Cir. 2000)). 23 statute of limitations, extending it to two years, effective 24 January 1, 2003. 25 federal court borrows the state statute of limitation, the court 26 should also borrow all applicable provisions for tolling the 27 limitations period found in state law.” 28 2007 WL 2695626, *1 (E.D. Cal. Sept. 11, 2007) (citations omitted). The Ninth The California legislature revised the relevant Maldonado, supra at 955. 5 “In actions where the Mistriel v. Kern County, 1 Additionally, federal law determines when a civil rights claim 2 accrues. 3 F.3d 800, 801-802 (9th Cir. 1994)). 4 accrues when the plaintiff knows or has reason to know of the 5 injury which is the basis of the action. 6 Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996)). 7 Mistriel, supra,(citing Elliot v. City of Union City, 25 Under federal law, a claim Mistriel, supra, (citing Defendant s Motion to Dismiss argues that Plaintiff s claim is 8 time barred under the two year personal injury statute of 9 limitations set forth in California Code of Civil Procedure Section 10 335.1 (“C.C.P. § 335.1”), because Plaintiff alleges that the 11 molestation ended in 2007, but he did not file the complaint until 12 2010. Plaintiff does not directly address this argument. 13 Instead, Plaintiff s opposition brief argues that the claim is 14 not subject to C.C.P. § 335.1, but rather is brought pursuant to 15 California Code of Civil Procedure Section 340.1, (“C.C.P. 16 § 340.1”) based on allegations of childhood sexual abuse. 17 § 340.1(a) states that: 18 19 20 21 22 23 24 25 26 27 28 In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later, for any of the following actions: (1) An action against any person for committing an act of childhood sexual abuse. (2) An action for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff. (3) An action for liability against any person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which result in the injury to the plaintiff. 6 C.C.P. 1 However, as Defendant notes, if Plaintiff intends C.C.P. 2 § 340.1 to be the basis of the claims against Defendant, there are 3 numerous problems with the complaint. 4 allege that Defendant owed a duty of care to Plaintiff, or that 5 Defendant committed an intentional act which was the legal cause of 6 the sexual abuse. 7 claims pursuant to § 340.1(a)(2) or (3), no action may be commenced 8 on or after the plaintiff s 26th birthday, unless the person or 9 entity knew or had reason to know or was otherwise on notice, of The complaint fails to Furthermore, C.C.P. § 340.1 states that for 10 any unlawful sexual conduct by an employee, and failed to take 11 reasonable steps. 12 allegations in the complaint that Defendant knew or had reason to 13 know of the alleged sexual abuse. 14 50 years old, the allegations against Defendant are barred by the 15 statute of limitations. 16 that every plaintiff 26 years of age or older at the time the 17 action is filed shall file a certificate of merit as specified in 18 subdivision (h). 19 merit in camera to determine if there is sufficient cause to 20 proceed with the lawsuit. 21 before any defendants are served. 22 C.C.P. § 340.1(b)(1) and (2). There are no Thus, as Plaintiff is now over Additionally, C.C.P. § 340.1(g) states The court must then review the certificate of The certificate of merit must be filed C.C.P. § 340.1(j). Defendant s Reply brief points out that no certificate of 23 merit was filed prior to service, as required by the statute. 24 After Defendant s Reply was filed, Plaintiff filed a certificate of 25 merit. 26 (Doc. 13). In short, the allegations of the complaint are not sufficient 27 to maintain the first claim for relief. 28 as plead in the complaint is barred by the statute of limitations 7 The first claim for relief 1 under C.C.P. § 335.5. 2 the first claim is brought based on C.C.P. § 340.1, and thus 3 potentially subject to a different statute of limitations, it lacks 4 critical allegations against Defendant that are necessary to 5 maintain the claim against Defendant under C.C.P. § 340.1. 6 Accordingly, the first claim for relief is dismissed. 7 8 9 2. If, as Plaintiff s opposition brief argues Violation of Section 1983, Second Claim for Relief The second claim for relief alleges that Plaintiff s rights were violated because “Defendants” developed and maintained 10 policies or customs exhibiting deliberate indifference to the 11 constitutional rights of the persons of the County, including 12 Plaintiff, particularly with regard to preventing unwanted acts of 13 sexual misconduct, unreasonable seizure, and excessive and 14 unreasonably use of force. 15 defendants and does not differentiate between defendants, further 16 states that “it was a policy or custom of these defendants to 17 inadequately supervise and train its officers, . . . these 18 defendants did not require adequate investigation and/or discipline 19 of officers who engage in police misconduct . . . the above 20 described policies and customs demonstrated deliberate indifference 21 on the part of policymaking persons with the County . . .” 22 (Complaint, ¶30-32). 23 The claim, which is alleged against all Both Defendant and Plaintiff include the second claim for 24 relief with the first claim for relief in their respective 25 analysis, raising the same arguments for and against dismissal of 26 the second claim as raised for and against dismissal of the first 27 claim. 28 limitations in C.C.P. § 335.1, and if Plaintiff is basing the claim Defendant argues that the claim is barred by the statute of 8 1 on C.C.P. § 340.1 then the complaint lacks critical and necessary 2 allegations regarding Defendant s knowledge of the abuse and duty 3 of care owed to Plaintiff. 4 that the second claim is also based on C.C.P. § 340.1, and requests 5 leave to amend to raise allegations of Defendant s duty of care. 6 Plaintiff s opposition brief alleges Municipal governments may only be sued under Section 1983 for 7 their unconstitutional or illegal policies. Monell, 436 U.S. at 8 694. 9 that “[a] local governmental entity s failure to train its A plaintiff may also establish Monell liability by showing 10 employees . . . „amounts to deliberate indifference to the rights 11 of persons with whom those employees are likely to come into 12 contact.” Lee, 250 F.3d at 681. 13 Plaintiff s second claim for relief raises only conclusory 14 allegations of an improper or unconstitutional policy maintained by 15 Defendant, and a conclusory allegation of failure to properly train 16 and supervise. 17 factual allegations against Defendant. 18 in relation to the first claim for relief, if Defendant is relying 19 on C.C.P. § 340.1 as the basis of the claim, he has failed to raise 20 the necessary allegations against Defendant, and the claim may be 21 time barred due to Plaintiff s age. 22 C.C.P. § 335.1 to provide the relevant statute of limitation, the 23 claim as plead is barred by the two year statute of limitations set 24 forth in the statute. 25 also dismissed. 26 27 28 The conclusory allegations are not supported by any Furthermore, as discussed If Plaintiff is relying on Accordingly, the second claim for relief is 3. Failure to File Certificate of Merit As discussed above, C.C.P. § 340.1 sets forth specific procedures that plaintiffs over the age of 26 must follow prior to 9 1 serving a complaint based on childhood sexual assault. The 2 Certificate of Merit must be accompanied by an affidavit from 3 plaintiff s attorney attesting that the attorney has reviewed the 4 facts of the case, consulted at least one mental health 5 practitioner who is familiar with the facts and issues of the 6 action, and on the basis of the review and consultation that there 7 is meritorious cause for filing the action. The Certificate of 8 Merit requires the psychologist who has evaluated the plaintiff to 9 state whether the practitioner has concluded on the basis of her 10 knowledge of the facts and issues, and in her professional opinion, 11 that the plaintiff has been subject to childhood sexual abuse. 12 Here, Plaintiff s lawyer has attested that he has concluded 13 Plaintiff has meritorious cause for filing the instant action. 14 However, the Court has reviewed in camera the psychologist s report 15 attached to the late filed Certificate of Merit, and finds that it 16 does not support such a conclusion. Thus, even if Plaintiff were to 17 have followed proper procedure in filing the Certificate of Merit, 18 the Court would not permit the case to proceed against Defendant. 2 19 20 III. ORDER 21 22 For the reasons set forth above, Defendant City of Grass Valley s Motion to Dismiss the First and Second Claims for Relief 23 24 25 2 26 27 28 The Court notes that a default judgment was taken against defendant William Butler. Mr. Butler has filed a motion to set aside the default judgment. The Court is not considering the allegations against Mr. Butler at this time, as they are not before the Court. However, the Court notes the procedural deficiencies and the deficiencies in the Certificate of Merit that Plaintiff will need to overcome should the Court set aside the default. 10 1 against it is GRANTED, WITH PREJUDICE. 2 Valley is dismissed from this case. 3 4 Defendant City of Grass IT IS SO ORDERED. Dated: December 10, 2010 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11