Redmond v. San Jose Police Department et al, No. 5:2014cv02345 - Document 102 (N.D. Cal. 2016)

Court Description: ORDER DENYING 88 MOTION TO DISMISS FOURTH AMENDED COMPLAINT. Signed by Judge Beth Labson Freeman.(blflc2S, COURT STAFF) (Filed on 6/7/2016)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 BLAIR REDMOND, Case No. 14-cv-02345-BLF Plaintiff, 8 v. 9 10 SAN JOSE POLICE DEPARTMENT, et al., Defendants. ORDER DENYING MOTION TO DISMISS FOURTH AMENDED COMPLAINT [Re: ECF 88] United States District Court Northern District of California 11 12 13 Plaintiff Blair Redmond initiated this civil rights lawsuit pro se to challenge how police 14 officers and their sergeants treated her after she videotaped an encounter between her boyfriend 15 and the officers. See Compl., ECF 1. Plaintiff, now represented by counsel, brings claims against 16 eight individual officers, pared down from thirteen, as well as the City of San Jose. See Fourth 17 Amended Compl. (“4AC”), ECF 75. Of these, Defendants seek to dismiss all claims against 18 Sergeant Donald Perrier, Sergeant Richard Galea, and Officer Wendy Hoskin. ECF 75. The Court 19 heard argument on this motion on March 24, 2016. For the reasons stated on the record and below, 20 Defendants’ Motion is DENIED. 21 I. BACKGROUND 22 The Court’s prior Dismissal Order sets forth the general background of this case. See ECF 23 75. For the purposes of this Order, the Court re-summarizes the allegations regarding Sergeants 24 Perrier and Galea and Officer Hoskin. 25 Plaintiff, a San Jose resident, alleges the following. On the afternoon of April 17, 2013, she 26 and her boyfriend were sitting in the parking lot of a skateboard park in a legally-parked car. 4AC 27 ¶ 19. They were the only African-American people parked in the immediate area. Id. ¶ 22. Three 28 plain-clothes officers, Tony Diep, Daniel Pfiefer, and Matthew Blackerby, approached, 1 2 aggressively fired off questions, and ordered Plaintiff to exit the car. Id. ¶¶ 22-23, 26, 28. Plaintiff and her boyfriend stated that they would not answer any questions without an 3 attorney present and also requested to speak to a sergeant. Id. ¶ 29. In addition, they stated that 4 they were going to record the encounter, and Plaintiff began to video record on her phone. Id. ¶ 5 30. One officer shouted at them to get out of the car and attempted to open the passenger-side 6 door, where Plaintiff’s boyfriend was seated. Id. ¶¶ 21, 31. 7 Eventually, the officers violently pulled Plaintiff’s boyfriend out of the car and attacked 8 him. Id. ¶¶ 37-38. Plaintiff exited the car with her phone clearly visible to record the beating. Id. ¶ 9 39. An officer then stated that she was under arrest, grabbed her hand in an attempt to rip her phone away, stomped on her foot, pinned her in place, punched her in the face, pulled her by the 11 United States District Court Northern District of California 10 hair, and dislocated her shoulder. Id. ¶¶ 42-47. 12 When Sergeant Perrier, who supervises Officers Diep, Pfiefer, Blackerby, and Hoskin, 13 arrived at the scene, he told Plaintiff that she had assaulted his officers. Id. ¶ 49. Though she had 14 been waiting to speak to a sergeant, she then refused to speak to him. Id. ¶¶ 9, 49. 15 At some later point, Officer Hoskin searched Plaintiff, who was still handcuffed, in plain 16 view of a crowd of at least 30 people that had gathered in the parking lot. Id. ¶¶ 50, 51. During the 17 search, Officer Hoskin lifted Plaintiff’s shirt, exposing her midriff and humiliating her. Id. ¶ 51. In 18 addition, Officer Hoskin told Plaintiff that, if she chose to go to the hospital, she would have to 19 wait there for 6 to 8 hours before having to wait an additional 6 to 8 hours in booking. Id. ¶ 52. 20 Based on this information, Plaintiff decided to proceed directly to booking. Id. 21 There, Sergeant Galea, who supervises Officers Diep, Pfiefer, Blackerby, and Hoskin, 22 interviewed her and attempted several times to blame her for the incident. Id. ¶ 54. He concluded 23 the interview by telling Plaintiff that she was facing felony assault charges against an officer and 24 was headed to jail. Id. ¶ 55. Plaintiff was then illegally arrested and incarcerated. Id. ¶ 58. 25 Plaintiff alleges that the individual officers’ actions and the sergeants’ responses reflects a 26 widespread and understood common practice by the San Jose police to target citizens based on 27 race. Id. ¶¶ 56, 64. The actions also demonstrate a standard operating procedure to intimidate, use 28 unreasonable excessive force, and physically assault citizens who attempt to document police 2 1 brutality. Id. ¶¶ 56, 64, 73, 75. Plaintiff alleges that the City recognizes and implicitly condones 2 these policies, and that the City’s training policies are inadequate to train officers on the 3 consequences of race-based targeting, recognition of a citizen videotaping police officers, what 4 constitutes probable cause and excessive force, the proper use and escalation of force, and implicit 5 bias, all of which reflects deliberate indifference to constitutional rights. Id. ¶¶ 56-57, 64. 6 Based on these allegations, Plaintiff brings the following claims against Sergeants Perrier and Galea: § 1983 claims for violation of her First and Fourth Amendment rights, violations of the 8 Banes Civil Rights Act, negligence, intentional and negligent infliction of emotional distress, and 9 false arrest/imprisonment. In addition, Plaintiff brings the following claims against Officer 10 Hoskin: § 1983 claims for violation of her Fourth Amendment rights, battery, false arrest/ 11 United States District Court Northern District of California 7 imprisonment, and negligent infliction of emotional distress. Defendants now seek to dismiss each 12 of these claims. 13 II. LEGAL STANDARD 14 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual 15 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 16 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 17 When considering a motion to dismiss, the Court “accept[s] factual allegations in the complaint as 18 true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek 19 v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The Court “need not, 20 however, accept as true allegations that contradict matters properly subject to judicial notice or by 21 exhibit.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 22 III. DISCUSSION 23 A. Sergeants Perrier and Galea 24 Defendants argue that the § 1983 claims against Sergeants Perrier and Galea should be 25 dismissed because neither was present at the time of Plaintiff’s alleged constitutional violations 26 and because Plaintiff fails to plead that either sergeant participated in, directed, or knowingly 27 failed to prevent any of the violations. Mot. at 3-4, 6-7 (citing Taylor v. List, 880 F 2d 1040, 1045 28 (9th Cir. 1989). Plaintiff responds that the sergeants are liable as supervisors because they trained 3 1 2 the individual officers to engage in such conduct and condoned their violations. Opp. at 7-9. Plaintiff need not allege that the sergeants were present at the time of the violations to 3 plead supervisory liability, see Starr v. Baca, 652 F. 3d 1202, 1205 (9th Cir. 2011), and Plaintiff 4 sufficiently alleges that the sergeants directed or failed to prevent the alleged violations through 5 training and ratification. See, e.g., 4AC ¶¶ 57, 64, 85-86, 91-92. For the same reason, Sergeants 6 Perrier and Galea are not entitled to qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 7 818 (1982). While the allegations regarding training and official policy may be weak, particularly 8 with regard to Sergeant Galea who was not at the parking lot, they suffice to survive a motion to 9 dismiss. 10 The Court finds that Defendants’ attempt to dismiss Plaintiff’s Bane Act claim because United States District Court Northern District of California 11 Plaintiff does not allege that the sergeants threatened, intimidated, or otherwise deprived her of a 12 constitutional right fails for the same reason. Mot. at 4-5; see also Cal. Civil Code § 52.1. See 13 M.H. v. Cty. of Alameda, 90 F. Supp. 3d 889, 898 (N.D. Cal. 2013) (where deliberate indifference 14 is alleged, no allegations of threats, intimidation, or coercion separate from the wrongful conduct 15 constituting the rights violation is necessary). 16 Finally, Defendants argue that California Government Code § 821.6 immunizes Sergeants 17 Perrier and Galea from the infliction of emotional distress claims. Under § 821.6, “[a] public 18 employee is not liable for injury caused by his instituting or prosecuting any judicial or 19 administrative proceeding within the scope of his employment, even if he acts maliciously and 20 without probable cause.” 21 Defendants contend that this immunity covers the sergeants’ actions because they 22 constituted police investigation of the events at the parking lot and were therefore an “essential 23 step” toward the institution of proceedings. Mot. at 5, 7. Defendants offer three cases to show that 24 investigation is covered by § 821.6. See Javor v. Taggart, 98 Cal. App. 4th 795, 809 (2002) (§ 25 821.6 immunizes an employee of California’s Uninsured Employers Fund from claims based on 26 prima facie determinations he made in the course of an investigation and through formal 27 administrative proceedings); Trujillo v. City of Ontario, 428 F. Supp. 2d 1094, 1124 (C.D. Cal. 28 2006), aff'd sub nom. Bernhard v. City of Ontario, 270 F. App'x 518 (9th Cir. 2008) (§821.6 4 1 immunizes officers who installed a surveillance camera in their locker room to investigate the theft 2 of a flashlight); Richardson-Tunnell v. Sch. Ins. Program for Employees (SIPE), 157 Cal. App. 4th 3 1056, 1062 (2007) (§821.6 immunizes individuals conducting surveillance for a workers’ 4 compensation claim investigation). 5 But Defendants again ignore Plaintiff’s allegations of the sergeants’ supervisory liability. 6 Even if the sergeants’ conduct could be construed as investigation and § 821.6 covered any 7 emotional distress caused by the sergeants’ direct interactions with Plaintiff, it cannot justify 8 dismissal of Plaintiff’s emotional distress claims to the extent that they arise from the sergeants’ 9 training and condoning the misconduct of other officers. B. Officer Hoskin 11 United States District Court Northern District of California 10 Defendants also seek to dismiss all claims against Officer Hoskin. First, they argue that she 12 is entitled to qualified immunity from the § 1983 claims because a reasonable officer would not 13 have known that searching Plaintiff was unlawful under clearly established law. See LaLonde v. 14 Cty. of Riverside, 204 F.3d 947, 953 (9th Cir. 2000); see also Anderson v. Creighton, 483 U.S. 15 635, 641 (1987). Defendants argue instead that Officer Hoskin’s search was permissible as a 16 search incident to arrest even if Officer Hoskin mistakenly but reasonably concluded that a lawful 17 arrest had occurred. Mot at 8. At the hearing, Defendants relied on Choi v. Gaston, 220 F.3d 1010, 18 1012 (9th Cir. 2000), a case they had not cited in their motion or reply, to make this point. 19 The Court has now reviewed Choi and finds that it does not help Defendants. In Choi, the 20 Ninth Circuit held that an officer was entitled to qualified immunity for arresting an individual 21 based on his reasonable reliance on information provided by other officers that, unbeknownst to 22 him, was inaccurate. Id. at 1012-13. Defendants argue that the same principle applies here: Officer 23 Hoskin should be immune because she reasonably believed that Plaintiff had been lawfully 24 arrested and was therefore justified in her search regardless of the ultimate legality of the arrest. 25 Defendants’ argument again misses the mark. Plaintiff challenges Officer Hoskin not 26 simply for searching her person, but for the manner in which she conducted the search— 27 specifically, for lifting Plaintiff’s clothing and exposing her midriff to a crowd of 30 people. The 28 Court finds that qualified immunity cannot overcome these allegations at this stage. 5 1 Defendants also argue that § 821.6 immunizes Officer Hoskin from the state law claims. Mot. at 9. Plaintiff responds that § 821.6 does not apply because “[c]onduct by persons acting 3 under color of state law which is wrongful under 42 U.S.C. § 1983 cannot be immunized by state 4 law.” I.K. ex rel. E.K. v Sylvan Union School Dist., 681 F. Supp. 2d 1179, 1204 (E.D. Cal. 2010) 5 (quoting Howlett ex rel. Howlett, 496 U.S. 356, 376 (1990)). While Plaintiff is correct that Officer 6 Hoskin cannot escape § 1983 liability on this basis, § 821.6 may immunize her for state claims 7 arising out of “instituting or prosecuting any judicial or administrative proceeding.” However, in 8 light of the poor briefing on this question—Defendants offer no explanation for their conclusory 9 assertion that § 821.6 covers Officer Hoskin’s alleged misconduct, see Mot. at 9, and provide 10 cases that disagree on the application of § 821.6 to torts other than malicious prosecution—the 11 United States District Court Northern District of California 2 Court is not prepared to dismiss these claims at this stage. 12 Finally, Defendants argue that Officer Hoskin’s alleged misconduct does not rise to the 13 level of egregiousness necessary for a negligent infliction of emotional distress claim. Again, the 14 Court disagrees. The allegations of the public, humiliating search suffice. In addition, Plaintiff 15 alleges that Officer Hoskin described hospital conditions that were so unappealing that no 16 reasonable person would seek medical care, thereby delaying her treatment and causing her further 17 physical pain. These allegations, too, reflect sufficiently egregious conduct. 18 Accordingly, the Court DENIES Defendants’ motion to dismiss. 19 IT IS SO ORDERED. 20 21 22 23 Dated: June 7, 2016 ______________________________________ BETH LABSON FREEMAN United States District Judge 24 25 26 27 28 6