Huey, et al. v. City of Vallejo, et al., No. 2:2013cv00916 - Document 33 (E.D. Cal. 2013)
Court Description: ORDER granting in part and denying in part 26 Motion to Dismiss signed by Judge John A. Mendez on 11/25/13. (Kaminski, H)
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Huey, et al. v. City of Vallejo, et al. Doc. 33 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 MICHAEL HUEY, individually and as successor-in-interest to decedent J.H., a minor; JANEEN LOTTON, individually and as successor-in-interest to decedent J.H., a minor, 14 Plaintiffs, No. 2:13-cv-00916-JAM-KJN ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF JANEEN LOTTON’S COMPLAINT 15 v. 16 17 18 19 20 21 22 23 24 25 CITY OF VALLEJO, a municipal corporation; ROBERT NICHELINI, individually and in his official capacity as Chief of Police for the CITY OF VALLEJO; JOSEPH KREINS, in his official capacity as Chief of Police for the CITY OF VALLEJO; KEVIN BARTLETT, individually and in his official capacity as police officer for the CITY OF VALLEJO; JEREMY HUFF, individually and in his official capacity as police officer for the CITY OF VALLEJO; and DOES 1–25, inclusive, 26 Defendants. 27 28 /// 1 Dockets.Justia.com 1 This matter comes before the Court on Defendants City of 2 Vallejo, Robert Nichelini, Joseph Kreins, Kevin Bartlett and 3 Jeremy Huff’s (“Defendants”) Motion to Dismiss (Doc. #26) 4 Plaintiff Janeen Lotton’s First Amended Complaint (Doc. #18). 5 Plaintiff Lotton filed an untimely opposition (Doc. #27) in 6 violation of E.D. Cal. Local Rule 230(c). 7 to follow the local rules has not been shown. 8 Opposition (Doc. #27) will not be considered by the Court. 9 Therefore, Defendants’ Reply (Doc. #28) will also not be 10 considered. Good cause for failure As a result, the The Court has considered the matter on the merits. 11 12 13 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND Plaintiff Huey filed the Complaint (Doc. #1) against 14 Defendants alleging eight causes of action arising from the 15 shooting death of his son, Decedent J.H. (“Decedent”), at the 16 hands of City of Vallejo police officers. 17 Plaintiff Lotton, the birth mother of Decedent, as a defendant. 18 Comp. ¶ 8. 19 Decedent at birth and did not live with Decedent while he was 20 alive. 21 plaintiff in the matter. 22 (Doc. #15); First Amended Complaint ¶ 8. 23 alleges claims in her individual capacity as well as a successor 24 in interest to Decedent. 25 Plaintiff Huey named The Complaint alleges that Plaintiff Lotton abandoned Plaintiff Lotton was subsequently reclassified as a named Answer and Seeking Reclassification Plaintiff Lotton In her petition for reclassification, Plaintiff Lotton 26 admits that Decedent did not live with her and that her custodial 27 and/or parental rights “may have been impaired or limited by the 28 Solano Superior Court.” Reclass. ¶ 8. 2 She stated that she 1 “sought a relationship” with Decedent and “maintained hope to 2 normalize their relationship once he was 18.” 3 the present Motion to Dismiss on September 6, 2013. Defendants brought 4 5 II. OPINION 6 A. 7 A party may move to dismiss an action for failure to state a Legal Standard 8 claim upon which relief can be granted pursuant to Federal Rule 9 of Civil Procedure 12(b)(6). To survive a motion to dismiss a 10 plaintiff must plead “enough facts to state a claim to relief 11 that is plausible on its face.” 12 556 U.S. 662, 570 (2007). 13 district court must accept all the allegations in the complaint 14 as true and draw all reasonable inferences in favor of the 15 plaintiff. 16 overruled on other grounds by Davis v. Scherer, 468 U.S. 183 17 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). 18 entitled to the presumption of truth, allegations in a complaint 19 or counterclaim may not simply recite the elements of a cause of 20 action, but must sufficiently allege underlying facts to give 21 fair notice and enable the opposing party to defend itself 22 effectively.” 23 2011), cert. denied, 132 S. Ct. 2101, 182 L. Ed. 2d 882 (U.S. 24 2012). 25 must plausibly suggest an entitlement to relief, such that it is 26 not unfair to require the opposing party to be subjected to the 27 expense of discovery and continued litigation.” 28 that are mere “legal conclusions” are therefore not entitled to Bell Atlantic Corp. v. Twombly, In considering a motion to dismiss, a Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), “First, to be Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. “Second, the factual allegations that are taken as true 3 Id. Assertions 1 the presumption of truth. 2 (2009) (citing Twombly, 550 U.S. at 555). 3 appropriate when a plaintiff fails to state a claim supportable 4 by a cognizable legal theory. 5 Department, 901 F.2d 696, 699 (9th Cir. 1990). 6 Ashcroft v. Iqbal, 556 U.S. 662, 678 Dismissal is Balistreri v. Pacifica Police Upon granting a motion to dismiss for failure to state a 7 claim, a court has discretion to allow leave to amend the 8 complaint pursuant to Federal Rule of Civil Procedure 15(a). 9 “Dismissal with prejudice and without leave to amend is not 10 appropriate unless it is clear . . . that the complaint could not 11 be saved by amendment.” 12 Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 13 14 15 B. Eminence Capital, L.L.C. v. Aspeon, Discussion 1. Plaintiff Lotton as Successor in Interest Defendants argue that Plaintiff Lotton cannot assert rights 16 as Decedent’s successor in interest because her parental and/or 17 custodial rights were impaired at the time of the minor’s death. 18 MTD at pp. 4-5. 19 person passes to the decedent’s “successor in interest.” 20 Code Civ. Proc. § 377.30. 21 § 377.11 defines a successor in interest as: “the beneficiary of 22 the decedent’s estate or other successor in interest who 23 succeeds to a cause of action or to a particular item of the 24 property that is the subject of a cause of action.” 25 concede that Decedent’s parents are legally entitled to bring 26 claims as the successors in interest, and do not challenge 27 Plaintiff Huey’s standing as Decedent’s successor in interest. 28 However, they contend that the pleadings indicate Plaintiff A cause of action that survives the death of a Cal. California Code of Civil Procedure 4 Defendants 1 Lotton no longer had standing to bring such a claim because of 2 her impaired parental/custodial rights. See Jackson v. 3 Fitzgibbons, 127 Cal.App.4th 329, 332, 335-336. 4 bears the burden of proving standing. 5 Bonneville Power Admin., 117 F.3d 1520, 1528 (9th Cir. 1997). 6 The plaintiff Nw. Envtl. Def. Ctr. v. Plaintiff’s own vague assertions about the limitations 7 placed on her parental and custodial rights place standing in 8 doubt. 9 Accordingly, Defendants’ Motion to Dismiss is granted as to As such, she has failed to meet her burden. 10 Plaintiff Lotton’s claims asserted as Decedent’s successor in 11 interest. 12 The Ninth Circuit has “repeatedly held that ‘a district 13 court should grant leave to amend even if no request to amend 14 the pleading was made, unless it determines that the pleading 15 could not possibly be cured by the allegations of other facts.’” 16 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quoting Doe 17 v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). 18 Plaintiff Lotton has not requested leave to amend in a timely 19 manner, the Court grants the motion without prejudice as she 20 could possibly allege facts that would provide her standing as 21 successor in interest. 22 2. 23 Although Plaintiff Lotton in her Individual Capacity Defendants argue that Plaintiff Lotton has not alleged a 24 constitutionally-protected familial relationship sufficient to 25 state a cause of action for violation of parental right to 26 familial relationship under 42 U.S.C. § 1983. 27 28 A parent has a “constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society 5 1 of his or her child." 2 Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). 3 the exact legal status of Plaintiff Lotton’s parental rights is 4 unclear from the pleadings, the Ninth Circuit has held that this 5 liberty interest “is not reserved for parents with full legal 6 and physical custody.” 7 (9th Cir. 2010). 8 “no legal or physical custody” have such a liberty interest. 9 Id. Curnow By and Through Curnow v. Although James v. Rowlands, 606 F.3d 646, 651 Courts have recognized that even parents with Therefore, despite the lack of clarity on the exact nature 10 of Plaintiff Lotton’s status as parent, the Court hereby denies 11 Defendants’ Motion to Dismiss as to Plaintiff Lotton’s claim in 12 her individual capacity as parent of Decedent. 13 14 15 III. ORDER For the reasons set forth above, the Court GRANTS WITHOUT 16 PREJUDICE Defendants’ Motion to Dismiss Plaintiff Lotton’s claims 17 as successor in interest to Decedent. 18 a Second Amended Complaint within twenty days of the date of this 19 Order. 20 Complaint shall be filed within twenty days thereafter. 21 Plaintiff Lotton may file Defendants’ responsive pleading to the Second Amended The Court DENIES Defendants’ Motion to Dismiss as to 22 Plaintiff Lotton’s claim for violation of her parental right to 23 familial relationship under 42 U.S.C. § 1983. 24 25 26 IT IS SO ORDERED. Dated: November 25, 2013 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 27 28 6
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