-KJN Duenez et al v. City of Manteca et al, No. 2:2011cv01820 - Document 21 (E.D. Cal. 2011)
Court Description: ORDER granting in part and denying in part 9 Motion to Dismiss signed by Judge Lawrence K. Karlton on 10/26/11. (Kaminski, H)
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-KJN Duenez et al v. City of Manteca et al Doc. 21 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 WHITNEY DUENEZ, individually and as successor-in-interest for Decedent ERNESTO DUENEZ, JR.; D.D., a minor, by and through his guardian ad litem, WHITNEY DUENEZ; ROSEMARY DUENEZ, individually; and ERNESTO DUENEZ, SR., individually, 15 16 NO. CIV. S-11-1820 LKK/KJN Plaintiffs, v. O R D E R 17 18 19 20 21 CITY OF MANTECA, a municipal corporation; DAVID BRICKER, in his capacity as Chief of Police for the CITY OF MANTECA; (FNU) AGUILAR, individually and in his official capacity as a police officer for the CITY OF MANTECA; and DOES 1-100, inclusive, 22 Defendants. 23 24 / This case arises from the shooting death of Ernesto Duenez, 25 Jr., and is brought pursuant to 42 U.S.C. § 1983. Plaintiffs 26 allege that officers from the Manteca Police Department shot and 1 Dockets.Justia.com 1 killed Ernesto Duenez, Jr., in violation of their rights under the 2 Fourth and Fourteenth Amendments to the United States Constitution. 3 Plaintiffs are the widow and successor-in-interest to the decedent, 4 the son, and the parents of Ernesto Duenez, Jr. Defendants are the 5 City 6 Department; Officer Aguilar of the Manteca Police Department, being 7 sued individually and in his official capacity; and a number of 8 officers from the Manteca Police Department. of Manteca; Chief David Bricker of the Manteca Police 9 Before the court is Defendants’ motion to dismiss, to strike, 10 and for a more definite statement, Defs’ Mot. Dismiss, ECF No. 9 11 (Aug. 30, 2011), which Plaintiffs oppose, Pls’ Opp’n, ECF No. 14 12 (Sept. 27, 2011). I. FACTUAL BACKGROUND1 13 14 On June 8, 2011, Ernesto Duenez, Jr. was driven by 15 acquaintances, Rudy Camarena and Rudy Camarena’s wife, to the 16 Manteca home of Michael Henry, where Mr. Ernesto Duenez, Jr. 17 retrieved some of his property. 18 offered a small knife to Ernesto Duenez, Jr. 19 Duenez, Jr. indicated that the knife was not his, Mr. Henry 20 offered the knife to Mr. Camarena, appearing insistent that Mr. 21 Camarena take the knife. 22 and threw it backwards, where it either landed in the bed of the Id. ECF No. 1, ¶ 12. Id. Mr. Henry After Ernesto Mr. Camarena accepted the knife 23 24 25 26 1 These facts are taken from the allegations in the Plaintiffs’ Complaint, ECF No. 1 (July 11, 2011), unless otherwise specified. The allegations are taken as true for purposes of this motion only. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007). 2 1 2 pickup truck or on the ground. Id. That afternoon or evening, a Manteca Police Officer, Sgt. 3 Aguilar, was seen driving around the neighborhood of Mr. 4 Camarena’s residence. 5 since portrayed Mr. Camarena’s residence as a suspected drug 6 house, but an unlawful search of the Camarena residence found no 7 contraband or evidence that the Camarena residence was involved 8 in any illegal activity. 9 residence or who was inside the residence at the time of the 10 Id. at ¶ 13. Id. Local press accounts have No one who lived at the Camarena incident was on probation or parole. Id. 11 Shortly before 6:45 p.m., as Mr. Camarena and his wife 12 returned to their home in Manteca with Ernesto Duenez seated in 13 the small backseat of their two-door pickup, Mr. Camarena saw a 14 Manteca Police Department patrol vehicle pass his truck, but the 15 patrol vehicle did not activate its siren or indicate for Mr. 16 Camarena to pull over. 17 Whitney Duenez, Ernesto Duenez’s wife, was inside the Camarena 18 residence, along with other members of Mr. Camarena’s family, 19 including Mr. Camarena’s elderly mother and the Camarenas’ 20 children. 21 Id. at ¶ 13.2 At this time, Plaintiff Id. After Mr. Camarena parked his pick-up truck in its usual 22 parking spot, in the yard of the Camarena residence, a Manteca 23 Police Department patrol vehicle stopped behind Mr. Camarena’s 24 25 26 2 The “Statement of Facts” section of Plaintiff’s complaint has two paragraphs numbered “13.” See Pls’ Compl., ECF No. 1, at 4-5. This fact is taken from the second of those paragraphs. 3 1 truck and activated its siren light. 2 ignition was turned off, and Ernesto Duenez began to try and 3 exit the truck, while Mr. Camarena and his wife remained in the 4 truck. 5 seated in the passenger seat) forward as he began to exit the 6 truck and stepped his left foot out of the truck, while his 7 right foot was tangled in the seat belt. 8 hands were up and it was clear that he possessed no visible 9 weapon. Id. Id. Id. at ¶ 14. The truck’s Ernesto Duenez pushed Mr. Camarena’s wife (who was Id. Mr. Duenez’s Other Manteca patrol vehicles arrived at the scene 10 and at least one police officer, who Plaintiffs believe to be 11 Defendant Officer Aguilar, and possibly other unknown officers 12 (named as Defendant “Officer Does”), then fired several gunshots 13 at Ernesto Duenez and struck him in the torso several times. 14 Id. 15 Plaintiff Whitney Duenez, hearing gunshots and someone 16 yelling her husband’s name, ran outside the Camarena residence 17 and saw her husband standing, with one foot outside the truck 18 and his right foot still inside the truck, having apparently 19 been shot several times in the torso. 20 Duenez had no weapon in his possession, was not advancing upon 21 anyone, and was essentially standing still after he had been 22 shot multiple times. 23 Department officer, identified by his name tag as Defendant 24 Officer Aguilar, fire one more gunshot, which Whitney Duenez saw 25 strike Ernesto Duenez in the face, whereupon Mr. Duenez fell to 26 the ground. Id. Id. Id. at ¶ 15. Ernesto Whitney Duenez saw a Manteca Police No weapons were visible anywhere near the 4 1 vicinity of Mr. Duenez, except those possessed by the Manteca 2 police officers present. 3 Id. Whitney Duenez ran towards Ernesto Duenez, whose body lay 4 on the ground while his foot remained entangled in the seat belt 5 of Mr. Camarena’s truck, and tried to hold Mr. Duenez’s body as 6 he died. 7 officers ordered Whitney Duenez to put her hands up, at 8 gunpoint, spoke to her in a rude and derogatory manner, and 9 handcuffed her. 10 Id. at ¶ 16. Unidentified Manteca Police Department Id. Ernesto Duenez’s body was handcuffed by unidentified 11 Manteca Police Department officers. 12 the scene provided first aid to Mr. Duenez. 13 appeared to be recovered from Mr. Duenez’s person or from the 14 scene. 15 cut the seat belt that Mr. Duenez’s foot was tangled in and 16 pulled Mr. Duenez’s body away from the truck. Id. Id. at ¶ 17. Id. No officer at No weapons One unidentified Manteca Police Department officer Id. 17 Several unidentified officers from the Manteca Police 18 Department then detained Whitney Duenez, Rudy Camarena, and Mr. 19 Camarena’s wife at gunpoint. 20 warrant, several unidentified Manteca Police Department officers 21 (named as Defendants “Does”) entered the Camarena residence, 22 searched it, and detained several people including Mr. 23 Camarena’s son and Mr. Camarena’s elderly mother, who is in poor 24 health. Id. at ¶ 18. Without a search Id. 25 All of the people arrested and/or detained at the scene, 26 including Whitney Duenez, Rudy Camarena, Mr. Camarena’s wife, 5 1 and Mr. Camarena’s son, were transported to the Manteca Police 2 Department, where they were detained and interrogated before 3 being released hours later, without any charges. 4 Each of these people were held against their will until their 5 release. 6 Id. at ¶ 19. Id. Ernesto Duenez, Jr. was on parole, and was set to discharge 7 from parole one month after he died. Id. at ¶ 20. Mr. Duenez 8 believed that he may have tested positive on a drug test and 9 possibly had a warrant against him for violating parole due to 10 the drug test, which would have caused Mr. Duenez to serve 11 minimal time in custody. 12 two-strike history was likely known to the Manteca Police 13 Department officers, including Defendant Aguilar, but the 14 defendants had no information on which they could reasonably 15 believe that Mr. Duenez was armed at the time he was shot, or 16 that he posed anything more than a risk of unarmed flight. 17 Mr. Duenez was, in fact, unarmed and unable to flee because his 18 leg was tangled in the truck’s seat belt. 19 Id. Mr. Duenez’s parole status and Id. Id. Plaintiffs allege that defendants had a clear view of Mr. 20 Duenez, they did not see Mr. Duenez possess any weapon, they 21 should have known that Mr. Duenez’s leg was tangled, and they 22 never saw Mr. Duenez move toward them or charge at them in a 23 threatening manner. 24 value of funeral and burial expenses; (2) wrongful death 25 damages; (3) damages incurred by Mr. Duenez before he died as 26 the result of being assaulted and battered, for deprivation Id. Plaintiffs seek: (1) the reasonable 6 1 without due process of his right to life, for penalties or 2 punitive damages to which he would have been entitled to recover 3 had he lived, and for pain, suffering, and disfigurement prior 4 to his death; (4) compensation for their loss of Mr. Duenez’s 5 financial support; (5) an award of punitive damages; and (6) 6 attorneys’ fees. Id. at ¶¶ 25-30. 7 II. STANDARDS FOR MOTION TO DISMISS, TO STRIKE, AND FOR A MORE 8 DEFINITE STATEMENT 9 10 A. MOTION TO DISMISS A Fed. R. Civ. P. 12(b)(6) motion challenges a complaint’s 11 compliance with the pleading requirements provided by the 12 Federal Rules. 13 pleading must contain a “short and plain statement of the claim 14 showing that the pleader is entitled to relief.” 15 must give defendant “fair notice of what the claim is and the 16 grounds upon which it rests.” 17 U.S. 544, 555 (2007) (internal quotation and modification 18 omitted). 19 Under Federal Rule of Civil Procedure 8(a)(2), a The complaint Bell Atlantic v. Twombly, 550 To meet this requirement, the complaint must be supported 20 by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, ___, 21 129 S. Ct. 1937, 1950 (2009). 22 provide the framework of a complaint,” neither legal conclusions 23 nor conclusory statements are themselves sufficient, and such 24 statements are not entitled to a presumption of truth. 25 1949-50. 26 process for evaluation of motions to dismiss. “While legal conclusions can Id. at Iqbal and Twombly therefore prescribe a two step 7 The court first 1 identifies the non-conclusory factual allegations, and the court 2 then determines whether these allegations, taken as true and 3 construed in the light most favorable to the plaintiff, 4 “plausibly give rise to an entitlement to relief.” 5 Erickson v. Pardus, 551 U.S. 89 (2007). 6 Id.; “Plausibility,” as it is used in Twombly and Iqbal, does 7 not refer to the likelihood that a pleader will succeed in 8 proving the allegations. 9 non-conclusory factual allegations, when assumed to be true, 10 “allow[] the court to draw the reasonable inference that the 11 defendant is liable for the misconduct alleged.” 12 S.Ct. at 1949. “The plausibility standard is not akin to a 13 ‘probability requirement,’ but it asks for more than a sheer 14 possibility that a defendant has acted unlawfully.” 15 (quoting Twombly, 550 U.S. at 557). 16 show a right to relief either by lacking a cognizable legal 17 theory or by lacking sufficient facts alleged under a cognizable 18 legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 19 699 (9th Cir. 1990). 20 B. MOTION FOR A MORE DEFINITE STATEMENT 21 Instead, it refers to whether the Iqbal, 129 Id. A complaint may fail to "If a pleading to which a responsive pleading is permitted 22 is so vague or ambiguous that a party cannot reasonably be 23 required to frame a responsive pleading, the party may move for 24 a more definite statement before interposing a responsive 25 pleading." 26 Rule 12(e) motion is appropriate are very limited." Fed. R. Civ. P. 12(e). 8 "The situations in which a 5A Wright 1 2 and Miller, Federal Practice and Procedure § 1377 (1990). Furthermore, absent special circumstances, a Rule 12(e) 3 motion cannot be used to require the pleader to set forth "the 4 statutory or constitutional basis for his claim, only the facts 5 underlying it." 6 1214, 1223 (9th Cir. 1990). 7 is not defective for failure to designate the statute or other 8 provision of law violated, the judge may in his discretion . . . 9 require such detail as may be appropriate in the particular McCalden v. California Library Ass'n, 955 F.2d 10 case." 11 However, "even though a complaint McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). C. MOTION TO STRIKE 12 Rule 12(f) authorizes the court to order stricken from any 13 pleading "any redundant, immaterial, impertinent, or scandalous 14 matter." 15 after the filing of the pleading under attack. 16 however, may make appropriate orders to strike under the rule at 17 any time on its own initiative. 18 and grant an untimely motion to strike where it seems proper to 19 do so. 20 Procedure: Civil 2d 1380. 21 A party may bring on a motion to strike within 21 days The court, Thus, the court may consider See 5A Wright and Miller, Federal Practice and A matter is immaterial if it "has no essential or important 22 relationship to the claim for relief or the defenses being 23 pleaded." 24 Cir. 1993), rev'd on other grounds by 510 U.S. 517 (1994). 25 matter is impertinent if it consists of statements that do not 26 pertain to and are not necessary to the issues in question. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th 9 A Id. 1 Redundant matter is defined as allegations that "constitute a 2 needless repetition of other averments or are foreign to the 3 issue." 4 06-1455, 2007 WL 210586 (E.D. Cal. Jan. 26, 2007), citing 5 Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005). 6 Thornton v. Solutionone Cleaning Concepts, Inc., No. Motions to strike are generally viewed with disfavor, and 7 will usually be denied unless the allegations in the pleading 8 have no possible relation to the controversy, and may cause 9 prejudice to one of the parties. See 5A C. Wright & A. Miller, 10 Federal Practice and Procedure: Civil 2d 1380; see also Hanna v. 11 Lane, 610 F. Supp. 32, 34 (N.D. Ill. 1985). 12 motion to strike may be proper if it will make trial less 13 complicated or eliminate serious risks of prejudice to the 14 moving party, delay, or confusion of the issues. 15 F.2d at 1527-28. However, granting a Fantasy, 984 16 If the court is in doubt as to whether the challenged 17 matter may raise an issue of fact or law, the motion to strike 18 should be denied, leaving an assessment of the sufficiency of 19 the allegations for adjudication on the merits. 20 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 21 2010); see also 5A Wright & Miller, supra, at 1380. 22 Whittlestone emphasized the distinction between Rule 12(f) and 23 Rule 12(b)(6) and held that Rule 12(f) does not authorize 24 district courts to strike claims for damages on the ground that 25 such claims are precluded as a matter of law. Id. at 976. 26 //// 10 See 1 "Were we to read Rule 12(f) in a manner that allowed litigants to use it as a means to dismiss some or all of a pleading . . . we would be creating redundancies within the Federal Rules of Civil Procedure." Whittlestone, Inc. v. Handi-Craft Co., See also Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir. 1977) ("Rule 12(f) is neither an authorized nor a proper way to procure the dismissal of all or a part of a complaint." (Citation omitted)). 2 3 4 5 6 7 Id. at 974. 8 9 Whittlestone reasoned that Rule 12(f) motions are reviewed for abuse of discretion, whereas 12(b)(6) motions are reviewed 10 de novo. Id. Thus, if a party seeks dismissal of a pleading 11 under Rule 12(f), the district court's action would be subject 12 to a different standard of review than if the district court had 13 adjudicated the same substantive action under Rule 12(b)(6). 14 Id. 15 III. ANALYSIS 16 A. Claims Against Chief David Bricker and Individual Officers in 17 Their Official Capacity 18 Defendants seek to dismiss all claims against Chief Bricker 19 as well as claims against Officer Aguilar as sued in his 20 official capacity, given that the City of Manteca is a named 21 defendant, rendering the naming of Chief Bricker and Officer 22 Aguilar, in his official capacity, redundant. 23 No. 9, at 7. 24 Defs' Mot., ECF Official-capacity suits under Section 1983 "generally 25 represent only another way of pleading an action against an 26 entity of which an officer is an agent." 11 Monell v. Dep't of 1 Soc. Servs., 436 U.S. 658, 690, n.55 (1978). As long as the 2 government entity receives notice and an opportunity to respond, 3 an official-capacity suit is, in all respects other than name, 4 to be treated as a suit against the entity. 5 473 U.S. 159, 165 n.14 (1985) (holding that "[t]here is no 6 longer a need to bring official-capacity actions against local 7 government officials, [because] under Monell, . . . local 8 government units can be sued directly" (citations omitted); see 9 also Center for Bio-Ethical Reform, Inc. v. Los Angeles County Kentucky v. Graham, 10 Sheriff, 533 F.3d 780, 799 (9th Cir. 2008) ("An official 11 capacity suit against a municipal officer is equivalent to a 12 suit against the entity."). 13 Although the Ninth Circuit has not decided this precise 14 issue, a number of district courts in the Ninth Circuit have 15 held that if individuals are being sued in their official 16 capacities as municipal officials and the municipal entity 17 itself is also being sued, then the official capacity claims 18 against the individuals are redundant and should be dismissed. 19 See, e.g., Vance v. County of Santa Clara, 928 F.Supp. 993, 996 20 (N.D. Cal. 1996); Carnell v. Grimm, 872 F.Supp. 746, 752 (D.Haw. 21 1994). 22 23 24 25 26 In Luke v. Abbott, the court reasoned: After the Monell holding, it is no longer necessary or proper to name as a defendant a particular local government officer acting in a official capacity. To do so only leads to a duplication of documents and pleadings, as well as wasted public resources for increased attorneys fees. A plaintiff cannot elect which of the defendant formats to use. If both are named, it is proper upon request for 12 1 the Court to dismiss the official-capacity officer, leaving the local government entity as the correct defendant. 2 3 954 F.Supp. 202, 203 (C.D. Cal. 1997); accord Arres v. City of 4 Fresno, 2011 WL 284971, at *5-6 (E.D. Cal. 2011). 5 The court here agrees with the reasoning of these district 6 courts. Because the City of Manteca is already named as a 7 defendant in this action, § 1983 claims against agents of the 8 City of Manteca, sued only in their official capacity, would be 9 duplicative in practice. Thus, Plaintiffs’ § 1983 claims 10 against Chief David Bricker, sued only in his official capacity, 11 are DISMISSED as redundant. 12 Officer Aguilar in his official capacity are DISMISSED; claims 13 against Officer Aguilar in his individual capacity remain. 14 B. Fourth Amendment Claims by Plaintiffs D.D., Rosemary Duenez, 15 and Ernesto Duenez, Sr. Plaintiffs' § 1983 claims against 16 Defendants argue that, "[t]o the extent that the complaint 17 may be read to assert claims by D.D. (decedent's son), Rosemary 18 and Ernesto Duenez [Sr.] for violation of decedent's Fourth 19 Amendment rights, those claims should be dismissed." 20 Mot., ECF No. 9, at 8. 21 Defs’ Fourth Amendment rights are personal rights which may not 22 be vicariously asserted. Alderman v. United States, 394 U.S. 23 165, 174, 89 S.Ct. 961 (1969). 24 the person whose Fourth Amendment rights were violated can sue 25 to vindicate those rights. 26 Dep't, 159 F.3d 365, 369 (9th Cir. 1998). The general rule is that only Moreland v. Las Vegas Metro. Police 13 In Section 1983 1 actions, however, the survivors of an individual killed as a 2 result of an officer's excessive use of force may assert a 3 Fourth Amendment claim on that individual's behalf if the 4 relevant state's law authorizes a survival action. 5 Id. California's survival statute provides that "[a] cause of 6 action that survives the death of the person entitled to 7 commence an action or proceeding passes to the decedent's 8 successor in interest . . . and an action may be commenced by 9 the decedent's personal representative or, if none, by the 10 decedent's successor in interest." 11 Grant v. McAuliffe, 41 Cal. 2d 859, 264 P.2d 944, 42 A.L.R.2d 12 1162 (1953). 13 CAL . CIV . PROC . § 377.30; Plaintiffs have named only Whitney Duenez as the 14 successor-in-interest to the decedent Ernesto Duenez, Jr. 15 Pls’ Compl., ECF No. 1, at 2. 16 statute allows a successor in interest to enforce a cause of 17 action belonging to the decedent, but does not provide for the 18 survival action to be brought by heirs who are not acting as 19 successors in interest,3 only Whitney Duenez may assert a claim 20 for violation of the decedent's Fourth Amendment rights. 21 22 See Because California's survival Thus, the court GRANTS Defendants’ motion and DISMISSES any Fourth Amendment claims brought by Plaintiffs D.D. (decedent's 23 24 25 26 3 Note that a person purporting to act as a successor in interest must satisfy the requirements under California Code of Civil Procedure § 377.32, which requires a person seeking to commence a survival action to execute and file an affidavit setting forth specific information. See CAL . CIV . PROC . § 377.32. 14 1 son), Rosemary Duenez, and Ernesto Duenez, Sr., WITH LEAVE TO 2 AMEND. 3 Plaintiffs' complaint indicates that all of the plaintiffs 4 are bringing a wrongful death action against the defendants. 5 Pls' Compl., ECF No. 1, at 8. 6 the standing requirements for bringing a wrongful death action 7 are not at issue in their motion, see Defs' Reply, ECF No. 16, 8 at 4, both parties intertwine arguments regarding the standing 9 required to bring a survival action and the standing required to Although Defendants assert that 10 bring a wrongful death action in California. In California, a 11 survival action is distinguishable from an action for the 12 wrongful death of the decedent. 13 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981). 14 have held that a wrongful death action can be maintained either 15 by the decedent's heirs or by the decedent's personal 16 representative on behalf of the heirs, but not both. 17 CIV. PROC . § 377.60; Adams v. Superior Ct., 196 Cal. App. 4th 71, 18 77, 126 Cal. Rptr. 3d 186 (2011); Scott v. Thompson, 184 Cal. 19 App. 4th 1506, 1511, 109 Cal. Rptr. 3d 846 (2010); Gordon v. 20 Reynolds, 187 Cal. App. 2d 472, 474, 10 Cal. Rptr. 73 (1960). 21 Plaintiffs seek leave to amend the complaint to "include Grimshaw v. Ford Motor Co., 119 California courts See CAL . 22 any inadvertently omitted references," "correct any inartful 23 verbiage," and "remedy any other pleading deficiencies." 24 Opp'n, ECF No. 14, at 10. 25 LEAVE TO AMEND the complaint to, inter alia, more specifically 26 plead the requirements set forth in California's wrongful death Pls' The court therefore GRANTS Plaintiffs 15 1 statute. 2 C. Claims for Recovery for Decedent's Pain and Suffering 3 See CAL . CIV . PROC . § 377.60. Defendants’ argue in their motion that Plaintiffs' claims 4 to recover for decedent's pain, suffering, and disfigurement 5 prior to death are not recoverable and should be “stricken.” 6 Defs' Mot., ECF No. 9, at 10. 7 Plaintiffs’ opposition, however, Defendants argue that these 8 claims should be “dismissed.” 9 The court will therefore analyze Defendants motions under the In Defendants reply to Defs’ Reply, ECF No. 16, at 3. 10 standards for both a motion to strike and a motion to dismiss. 11 Defendants assert that, as a matter of law in the Eastern 12 District of California, such damages are not recoverable. 13 However, under the Supreme Court’s holding in Whittlestone, Inc. 14 v. Handi-Craft Co., district courts are not authorized to strike 15 claims for damages on the ground that such claims are precluded 16 as a matter of law. 17 insofar as Defendants motion is a motion to strike Plaintiffs’ 18 claims for damages incurred by Ernesto Duenez, Jr. for his pain, 19 suffering, and disfigurement prior to death, that motion is 20 DENIED. 21 Defendants motion as a motion to dismiss. 22 618 F.3d 970, 976 (9th Cir. 2010). Thus, The court now turns to its analysis construing Section 1983 does not address survivor claims or any 23 appropriate remedies. If a civil rights statute is "deficient 24 in the provisions necessary to furnish suitable remedies," 25 courts must look to applicable state law. 26 However, state law may not be applied when it is "inconsistent 16 42 U.S.C. § 1988(a). 1 with the Constitution and laws of the United States." 2 Robertson v. Wegmann, 436 U.S. 584, 594-95, 98 S.Ct. 1991, 56 3 L.Ed.2d 554 (1978). 4 purpose behind the Federal Civil Rights Act is to: (1) prevent 5 official illegality; and (2) compensate persons for injuries 6 caused by the deprivation of constitutional rights. 7 Robertson, 436 U.S. at 592, 98 S.Ct. 1991; Carey v. Piphus, 435 8 U.S. 247, 254, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). 9 survivor actions in California, "the damages recoverable are 10 limited to the loss or damage that the decedent sustained or 11 incurred before death, including any penalties or punitive or 12 exemplary damages that the decedent would have been entitled to 13 recover had the decedent lived, and do not include damages for 14 pain, suffering, or disfigurement." 15 (emphasis added). 16 Id.; see The Supreme Court has stated that the See In CAL . CIV . PROC . § 377.34 Neither the Supreme Court nor the Ninth Circuit have 17 addressed whether or not a state’s damage limitations for a 18 wrongful death claim are inconsistent with § 1983. 19 Robertson, 436 U.S. at 594-95 ("We intimate no view . . . about 20 whether abatement based on state law could be allowed in a 21 situation in which deprivation of federal rights caused death"); 22 Mahach-Watkins v. Depee, 593 F.3d 1054, 1060 (9th Cir. 2010) 23 (acknowledging that "The Ninth Circuit has not addressed the 24 question of what damages are available under a Section 1983 25 wrongful death claim"); Smith v. City of Fontana, 818 F.2d 1411, 26 1417 n.7 (9th Cir. 1987) (acknowledging but declining to decide 17 See 1 2 the issue). Other circuits have concluded that when a violation of 3 federal civil rights results in death of the victim, state 4 statutes limiting the remedies of the victim's estate and family 5 members are not consistent with the purposes of § 1983. 6 e.g., Berry v. City of Muskogee, 900 F.2d 1489, 1499-1507 (10th 7 Cir. 1990); Bell v. Milwaukee, 746 F.2d 1205 (7th Cir. 1984), 8 overruled on other grounds by Russ v. Watts, 414 F.3d 783 (7th 9 Cir. 2005); Jaco v. Bloechle, 739 F.2d 239, 241-45 (6th Cir. See, 10 1984). 11 Wisconsin law precluding recovery to the victim's estate for 12 loss of life was inconsistent with the deterrent policy of § 13 1983 and the Fourteenth Amendment's protection of life: 14 [S]ince in the instant case the killing is the unconstitutional act, there would result more than a marginal loss of influence on potentially unconstitutional actors and therefore on the ability of Section 1983 to deter official lawlessness if the victim's estate could not bring suit to recover for loss of life. 15 16 17 In Bell, the Seventh Circuit explained that the 18 19 Bell, 746 F.2d at 1239. In Berry, the Tenth Circuit held that 20 the application of Oklahoma's survival statute, which arguably 21 limited recovery to property loss and loss of earnings by the 22 decedent between the time of injury and death, would be 23 inconsistent with Congress's intention to provide significant 24 recompense when a constitutional violation causes the death of a 25 victim and would result in deficient deterrence. 26 F.2d at 1506. 18 Berry, 900 1 The district courts within the Ninth Circuit are split on 2 this issue. 3 held that § 377.34's limitation of damages for pain, suffering, 4 or disfigurement is not inconsistent with § 1983. 5 the legislative history of California Civil Procedure Code § 6 377.34, the court in Venerable v. City of Sacramento, 185 7 F.Supp.2d 1128 (E.D. Cal. 2002) noted: 8 9 10 11 12 13 14 15 Courts in the Eastern District have consistently In reviewing The legislature could well conclude that recovery for the decedent's pain and suffering is not the better rule given: (1) the uncertainty of testimony about how someone, now dead, suffered; (2) the provision for compensation to family survivors under the wrongful death statute for their own damages, including loss of companionship, and a natural reluctance to add as 'compensation' the injury actually suffered by another; and (3) the adequacy of deterrence already provided by the possible array of damages for negligent conduct leading to death whether those damages are sought under the survival statute or by way of a wrongful death action. 16 Id. at 1132. The court in Venerable declined to adopt the 17 "cynical proposition that law enforcement officers generally 18 prefer to run the risk of inflicting death than of merely 19 maiming a victim because death cuts off a claim for pain and 20 suffering by the decedent," id. at 1133, and held that the 21 damages provided by the California survival and wrongful death 22 statutes are not inconsistent with the Constitution and laws of 23 the United States, id. 24 Eastern District have consistently held that damages for 25 decedent's pain and suffering are not recoverable in survival 26 actions under § 1983. Following Venerable, courts in the See Estate of Contreras ex rel. Contreras 19 1 v. County of Glenn, 725 F.Supp.2d 1151, 1156 (E.D. Cal. 2010); 2 Provencio v. Vazquez, 2008 WL 3982063, at *12 (E.D.Cal. Aug. 18, 3 2008) (holding that pain and suffering claims are precluded 4 because "the statutory scheme for survivors in California still 5 provides compensatory damages for the remaining injured parties, 6 i.e., the survivors"); Rosales v. City of Bakersfield, 2007 WL 7 1847628, at *18 n.11 (E.D. Cal. June 27, 2007); Whitfield v. 8 State of California, 2007 WL 496342, at *2 (E.D. Cal. Feb. 13, 9 2007); Moore ex rel. Moore v. County of Kern, 2006 WL 2190753, 10 at *5-*6 (E.D. Cal. Aug. 1, 2006); Peacock v. Terhune, 2002 WL 11 459810, at *4-*5 (E.D. Cal. Jan. 23, 2002).4 12 Courts in the Southern, Central, and Northern Districts, 13 however, have opted not to apply § 377.34's limitation on 14 damages for pain, suffering, or disfigurement, finding it 15 inconsistent with the purposes of § 1983. 16 Hirschfield v. San Diego Unified Port Dist., 2009 WL 3248101, at 17 *4 (S.D.Cal. Oct. 8, 2009); Garcia v. Whitehead, 961 F. Supp. 18 230, 233 (C.D. Cal. 1997) (providing, in part, "The Court does 19 not find persuasive the notion that punitive damages provide an 20 adequate deterrent effect. 21 violation is found, punitive damages are never available against 22 the agency itself in a section 1983 action, and are not always 23 warranted against the individual defendant."); Williams v. City See, e.g., Even where a constitutional 24 4 25 26 The California Court of Appeal has similarly held that § 377.34's limitation of damages is not inconsistent with § 1983. Garcia v. Superior Court, 42 Cal.App.4th 177, 49 Cal.Rptr.2d 580 (1996). 20 1 of Oakland, 915 F.Supp. 1074 (N.D.Cal. 1996) (providing, in 2 part, "the amount of [punitive] damages will be governed by the 3 financial condition of the individual officer without regard to 4 the pain and suffering he may have inflicted on the decedent"); 5 Guyton v. Phillips, 532 F.Supp. 1154, 1166 (C.D.Cal. 1981) 6 (noting that: “Federal decisional law leaves little doubt that 7 if there were no applicable state survival statute the action 8 would not be permitted to abate. 9 Civil Rights Act of 1871 would be thwarted”; "pain and suffering Otherwise the purpose of the 10 sustained prior to death is recoverable in a majority of 11 jurisdictions"; and "[t]he inescapable conclusion is that there 12 may be substantial deterrent effect to conduct that results in 13 the injury of an individual but virtually no deterrent to 14 conduct that kills its victim."). 15 The court finds the reasoning provided by the Southern, 16 Central, and Northern Districts of California, as well as other 17 circuit courts, more persuasive than that of Venerable and its 18 progeny in the Eastern District. 19 has some persuasive authority, it appears to this court that 20 Venerable denigrates the purposes of Section 1983. While the opinion in Venerable 21 However, because the courts in the Eastern District of 22 California have consistently held that § 377.34's limitation on 23 damages is consistent with the purposes of § 1983, and it would 24 be inappropriate to have the results of an issue turn upon 25 whichever judge happens to be assigned to a case, the court will 26 decline to permit a survival action for damages for the 21 1 2 decedent's pain, suffering, and disfigurement. Thus, the court GRANTS Defendants' motion to dismiss 3 Plaintiffs' claims for damages incurred by decedent for his 4 pain, suffering, and disfigurement prior to death. 5 notes that the determination regarding whether or not § 377.34's 6 limitation on damages conflicts with the purposes of § 1983 is 7 one involving a controlling question of law, that there is 8 substantial ground for difference of opinion, and that an 9 immediate appeal from the order will materially advance the The court 10 ultimate termination of the litigation. 11 certifies this issue for interlocutory appeal pursuant to 28 12 U.S.C. § 1292(b). 13 D. Allegations Mixing Fourth and Fourteenth Amendment Claims 14 Defendants assert that, in Plaintiffs' complaint, "each 15 cause of action appears to allege a claim by every plaintiff 16 against every defendant under both the Fourth and Fourteenth 17 Amendments," and that "[a]ll of the causes of action, which mix 18 parties and legal theories, should be dismissed or ordered 19 clarified." 20 construe Defendants’ motion in this regard as both a motion to 21 dismiss and as a motion for a more definite statement. 22 Accordingly, the court Defs' Mot., ECF No. 9, at 10. The court will In enumerating their causes of action, Plaintiffs have not 23 stated with particularity which plaintiffs are asserting which 24 claims against which defendants. 25 No. 1, at 9 ("Defendants acted under color of law by killing 26 decedent without lawful justification by subjecting decedent to 22 See, e.g., Pls' Compl., ECF 1 excessive force thereby depriving Plaintiff and the decedent of 2 certain constitutionally protected rights, including . . . The 3 right to be free from unreasonable searches and seizures, as 4 guaranteed by the Fourth and Fourteenth Amendments."). 5 However, the Plaintiffs have alleged sufficient non- 6 conclusory factual allegations concerning Ernesto Duenez, Jr.’s 7 seizure which, if taken as true and construed in the light most 8 favorable to Plaintiffs, plausibly give rise to a finding that 9 the Manteca police officers’ seizure and resulting shooting of 10 the decedent was “objectively unreasonable,” and thus, that the 11 Defendants acted with excessive force in violation of the 12 decedent’s Fourth Amendment rights. 13 U.S. 386 (1989) (holding that a free citizen’s claim that law 14 enforcement officials used excessive force in the course of 15 making a seizure of his person is properly analyzed under the 16 Fourth Amendment’s “objective reasonableness” standard). 17 Plaintiffs’ complaint, therefore, provides Defendants with “fair 18 notice of what the claim is and the grounds upon which it 19 rests,” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). 20 Insofar as Defendants’ motion regarding the Plaintiffs’ mixture 21 of their Fourth and Fourteenth Amendment claims is a motion to 22 dismiss, Defendants’ motion is DENIED. See Graham v. Connor, 490 23 Insofar as Defendants’ motion regarding the Plaintiffs’ 24 mixture of their Fourth and Fourteenth Amendment claims is a 25 motion for a more definite statement, that motion is DENIED 26 because a Rule 12(e) motion cannot be used to require the 23 1 pleader to set forth "the statutory or constitutional basis for 2 his claim, only the facts underlying it." 3 California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990). 4 Plaintiffs have adequately set forth their alleged facts in this 5 regard. 6 McCalden v. However, "even though a complaint is not defective for 7 failure to designate the statute or other provision of law 8 violated,” the court may “require such detail as may be 9 appropriate in the particular case." 10 11 McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). As discussed above, not all of the Plaintiffs may assert 12 Fourth Amendment survival claims against the Defendants and, 13 similarly, not all of the Plaintiffs may assert wrongful death 14 claims against the Defendants. 15 it appropriate to grant Plaintiffs leave to amend their 16 complaint to state which Plaintiffs are asserting each of these 17 claims. The court has, therefore, found 18 Furthermore, Defendants are correct in arguing that 19 Plaintiffs' claims that the decedent was subject to excessive 20 force should be asserted under the Fourth Amendment of the 21 United States Constitution, and not the Fourteenth Amendment. 22 See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 23 (1989) ("all claims that law enforcement officers have used 24 excessive force—deadly or not—in the course of an arrest, 25 investigatory stop, or other 'seizure' of a free citizen should 26 be analyzed under the Fourth Amendment and its 'reasonableness' 24 1 standard, rather than under a 'substantive due process' 2 approach."). 3 Plaintiffs to amend their complaint accordingly. Thus, the court finds it appropriate to ORDER 4 Finally, under most enumerated causes of action in 5 Plaintiffs' complaint, Plaintiffs properly assert claims for 6 their loss of familial relationships with the decedent under the 7 Fourteenth Amendment alone. 8 at 11, 12; see also Curnow By and Through Curnow v. Ridgecrest 9 Police, 952 F.2d 321, 325 (9th Cir. 1991) ("While the person who 10 claims excessive force was directed at him or her can only raise 11 a [F]ourth [A]mendment claim, a parent who claims loss of the 12 companionship and society of his or her child, or vice versa, 13 raises a different constitutional claim. . . [based on] a 14 constitutionally protected liberty interest under the Fourteenth 15 Amendment"). 16 states: 17 18 19 20 21 22 23 24 25 26 See, e.g., Pls' Compl., ECF No. 1, However, Plaintiffs' second cause of action Defendants, acting under color of law, and without due process of law deprived Plaintiffs of their right to a familial relationship by seizing decedent by use of unreasonable, unjustified, cruel and unusual deadly force and violence, causing injuries which resulted in decedent's death, all without provocation and did attempt to conceal their excessive use of force and hide the true cause of decedent's demise to deprive Plaintiffs of their right to seek redress, all in violation of the rights, privileges, and immunities secured by the Fourth and Fourteenth Amendments to the United States Constitution. Plaintiffs allege that Defendants acted with an intent to harm Decedent unrelated to legitimate law enforcement purposes. Pls' Compl., ECF No. 1, at 9. This allegation is unclear as to 25 1 whether Plaintiffs' claim is based on the deprivation of their 2 right to a familial relationship, the unlawful seizure of the 3 decedent, or the Defendants' alleged attempts to conceal their 4 excessive use of force. 5 sufficiently set forth the facts underlying their claims, the 6 court finds it appropriate to ORDER Plaintiffs to clarify this 7 second cause of action. 8 9 Thus, even though Plaintiffs have With regard to Defendants as named in the complaint, Plaintiffs are GRANTED LEAVE TO AMEND their complaint in 10 accordance with the court's dismissal of redundant Defendants 11 named in their official capacity. 12 E. Defendants' Request to Strike Allegations from the Complaint 13 as Irrelevant, Improper, and Impertinent 14 Defendants argue that various allegations in the complaint 15 are irrelevant, improper, and impertinent and should, therefore, 16 be stricken. 17 each of Plaintiffs' assertions in turn. 18 19 20 21 22 23 24 25 Defs' Mot., ECF No. 9, at 11. The court addresses First, Defendants move to strike Plaintiffs' assertion that: Press accounts subsequently released falsely claimed Mr. Duenez had approached the Manteca police department officers armed, according to the various press accounts, with neither [sic], a knife, a gun, or a weapon. Some of these false accounts were attributed by press to Manteca Police Department sources. . . . Press accounts have also reported that Manteca Police Department patrol vehicles are equipped with video camera recording devices designed to capture events of police and suspect activity on video. 26 26 1 Pls' Compl., ECF No. 1, at 1-2. This assertion bears an 2 important relationship to the question of whether or not Ernesto 3 Duenez, Jr. “pose[d] an immediate threat to the safety of the 4 officers” at the scene, which the factfinder must assess in 5 determining if the officers’ actions were “objectively 6 reasonable,” in satisfaction of the Fourth Amendment. 7 Graham v. Connor, 490 U.S. 386, 396 (1989). 8 assertion being true makes it less likely that the decedent 9 “posed an immediate threat to the safety of the officers.” See That is, this Id. 10 Thus, Defendants’ motion to strike is DENIED as to Plaintiff’s 11 first assertion. Second, Defendants move to strike Plaintiffs' assertion 12 13 that: Plaintiffs' attorney has requested the police reports and patrol vehicle video footage of the incident from the Manteca Police Department. Defendant Manteca Police Department Police Chief David Bricker has refused to provide any such responsive information, invoking various California state law statutory privileges. Chief Bricker's correspondence refusing to disclose any responsive information is attached to this Complaint as Exhibit A. 14 15 16 17 18 19 20 Id. at 2. This assertion also pertains to Plaintiffs’ ability 21 to prove whether or not Ernesto Duenez, Jr. posed an immediate 22 threat to the safety of the officers at the scene and the 23 objective reasonableness of the officers’ actions. 24 argument that Plaintiffs’ assertion “attempt[s] to collaterally 25 attack the denial of the request” raises an issue of law as 26 opposed to an issue of factual pertinence or materiality and, 27 Defendants’ 1 thus, Defendants’ motion to strike is DENIED as to Plaintiff’s 2 second assertion. 3 4 Third, Defendants move to strike Plaintiffs' assertion that: 5 Several unidentified Manteca Police Department Officers detained . . . [third parties] Rudy Camarena, and Mr. Camarena's wife, all at gunpoint. Then, without a search warrant, probable cause, or exigency, several unidentified Manteca Police Department officer Does entered Mr. Camarena's residence, searched it, and detained several people, including, but not limited to, Mr. Camarena's son, and Mr. Camarena's elder mother who is in very poor health. . . . All of the people arrested and/or detained at the scene were transported to the Manteca Police Department, including, but not limited to . . . Rudy Camarena, and Mr. Camarena's wife and son, where they were detained for an excessive period of time and subjected to interrogations before being released hours later without any charges. Each was held against their will until their release. 6 7 8 9 10 11 12 13 14 15 16 Id. at 6. 17 reasonable” under the Fourth Amendment, a factfinder is required 18 to pay “careful attention to the facts and circumstances of each 19 particular case.” 20 conduct directly following the death of Ernesto Duenez, Jr. 21 pertains to a factfinder’s understanding of the circumstances of 22 the case at hand and, thus, is not immaterial or impertinent to 23 the question of whether or not the officers’ actions in this 24 case were reasonable. 25 DENIED as to Plaintiff’s third assertion. 26 In assessing whether or not a seizure is “objectively Graham, 490 U.S. at 396. The officers’ Thus, Defendants’ motion to strike is IV. CONCLUSION 28 1 For the foregoing reasons, the court GRANTS Defendants’ 2 motion, in part, and DENIES Defendants’ motion, in part. 3 court makes the following orders: 4 • The Plaintiffs’ § 1983 claims against Chief David Bricker, sued 5 only in his official capacity, are DISMISSED as redundant. 6 Plaintiffs' § 1983 claims against Officer Aguilar in his 7 official capacity are DISMISSED; claims against Officer 8 Aguilar in his individual capacity remain. 9 GRANTED LEAVE TO AMEND their complaint in accordance with Plaintiffs are 10 the court's dismissal of redundant Defendants named in 11 their official capacity. 12 • The court GRANTS Defendants’ motion and DISMISSES any 13 Fourth Amendment claims brought by Plaintiffs D.D. 14 (decedent's son), Rosemary Duenez, and Ernesto Duenez, Sr., 15 WITH LEAVE TO AMEND. 16 • The court GRANTS Plaintiffs LEAVE TO AMEND the complaint to 17 more specifically accord with the requirements set forth in 18 California's wrongful death statute, Cal. Civ. Proc. § 19 377.60. 20 • 21 22 The court ORDERS Plaintiffs to clarify Plaintiffs’ second cause of action. • The court GRANTS Defendants' motion to strike Plaintiffs' 23 claims for damages incurred by decedent for his pain, 24 suffering, and disfigurement prior to death. 25 CERTIFIES this issue for interlocutory appeal pursuant to 26 28 U.S.C. § 1292(b). 29 The court 1 • Insofar as Defendants’ motion regarding the Plaintiffs’ 2 mixture of their Fourth and Fourteenth Amendment claims is 3 a motion to dismiss, Defendants’ motion is DENIED. 4 • Insofar as Defendants’ motion regarding the Plaintiffs’ 5 mixture of their Fourth and Fourteenth Amendment claims is 6 a motion for a more definite statement, that motion is 7 DENIED. 8 9 • Defendants’ motion to strike allegations they have identified as being “irrelevant, improper, and impertinent” 10 is DENIED. 11 IT IS SO ORDERED. 12 DATED: October 26, 2011. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 30
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