-BLM Warner et al v. County of San Diego et al, No. 3:2010cv01057 - Document 21 (S.D. Cal. 2011)
Court Description: ORDER Granting in Part and Denying in Part 16 Motion to Dismiss. The Court grants Plaintiffs leave to amend their complaint to correct the deficiencies identified above. Any amended complaint must be filed within 20 days of the entry of this order. If no amended complaint is filed by the 20th day, Defendants shall file an answer to the original complaint within 10 days thereafter. Signed by Judge Barry Ted Moskowitz on 2/14/11. (jer)
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-BLM Warner et al v. County of San Diego et al Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JAMES WARNER, TROY WARNER, SHAD WARNER, NICOLE WARNER, ERICA IWASCKIEWICZ, AND IWO IWASCKIEWICZ, Case No. 10cv1057 BTM(BLM) ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS 13 Plaintiffs, 14 15 v. COUNTY OF SAN DIEGO, et al., Defendants. 16 17 18 Defendants have filed a motion to dismiss certain of the claims asserted in Plaintiffs’ 19 Complaint. For the reasons discussed below, Defendants’ motion is GRANTED IN PART 20 and DENIED IN PART. 21 22 23 24 I. BACKGROUND The following facts are taken from the Complaint, and the Court makes no finding as to the truthfulness of the allegations. 25 On April 26, 2009, James Warner was having a get-together at his house with family 26 and friends, including Troy Warner, Shad Warner, Nicole Warner, Erica Iwasckiewicz, and 27 Iwo Iwasckiewicz. (Compl. ¶ 12.) That afternoon, a neighbor, Michael May, called the 28 Sheriff’s department, claiming that James Warner’s son, Jacob, was playing music too loud 1 10cv1057 BTM(BLM) Dockets.Justia.com 1 in his car. (Compl. ¶ 13.) When Sheriff’s deputies arrived at the Warner residence, there 2 was no music playing and the deputies left. (Id.) 3 Later, at 7:52 p.m., Deputy Zachary Harris arrived to investigate the noise complaint. 4 (Compl. ¶ 14.) Harris took a statement from May, who claimed that around 7:30 p.m., James 5 Warner walked to the end of his driveway and shouted, “I’m going to kick that fat piece of 6 sh__’s ass, as well as that skinny f___.” (Id.) 7 Harris decided that he was going to arrest James Warner for a violation of California 8 Penal Code § 422 (Criminal Threats). (Compl. ¶ 15.) Harris called for back up support, 9 directing them to bring non-lethal weapons, and also requested a helicopter. (Compl. ¶ 16.) 10 Sergeant Persichilli and Deputies Byrne, Astorga, Mayordeleon, Julian, Glover, Cantu, 11 Hernandez, Boer, Carlos, Hurtado, and Washington responded. (Compl. ¶ 16.) Deputy 12 Washington forced his way into the house and handcuffed Jacob Warner, a minor. (Compl. 13 ¶ 16.) Deputy Harris and other deputies went in search of James Warner, who was in the 14 backyard in a jacuzzi. (Compl. ¶ 17.) James Warner and several other adults walked toward 15 the back gate to talk to the officers. (Id.) The officers pointed weapons in their direction and 16 locked laser target beams on their bodies. (Compl. ¶ 18.) James Warner was wearing only 17 soaking wet boxers and had his hands in the air. (Id.) Deputy Harris grabbed Warner 18 around the neck, swept his feet out from under him, tasered him, handcuffed him, and took 19 him to a patrol car. (Id.) 20 In the meantime, family members and friends were yelling to the deputies to find out 21 what was happening. (Compl. ¶ 19.) The deputies opened fire with pepperball rounds, 22 shooting several people and the house. (Id.) The group went into the house and called 911. 23 Each time they tried to go outside to find out what was happening, they were fired upon. 24 (Id.) Deputies forced their way into the house, handcuffed everyone, including some of the 25 children, took them outside in the cold night for hours, eventually releasing all but four. (Id.) 26 One deputy seized a digital camera card out of a camera owned by James Warner. (Id.) 27 Two of Mr. Warner’s brothers, Troy and Shad, as well as his sister-in-law, Erica 28 Iwaszkiewicz, were arrested. (Id.) 2 10cv1057 BTM(BLM) 1 James, Troy, and Shad Warner were charged with violating California Penal Code §§ 2 422, 148(a)(1), and 415(3). (Compl. ¶ 20.) Erica Iwaszkiewicz was released with a citation. 3 (Id.) On June 9, 2009, James, Shad and Troy Warner entered a plea of guilty to violating 4 California Penal Code § 415(3) (disturbing the peace). (Compl. ¶ 21.) No factual allegations 5 were admitted in connection with the pleas by Shad and Troy Warner. (Id.) The factual 6 basis for James Warner’s plea was yelling out his front door earlier in the day. (Id.) 7 The Complaint asserts the following claims (1) violation of 42 U.S.C. § 1983 by 8 unlawful search, false arrest and seizure, unlawful detention, excessive force, and 9 conspiracy to deprive civil rights; (2) violation of 42 U.S.C. § 1983 via unlawful policies, 10 customs, or habits; (3) negligence; (4) assault and battery; (5) civil conspiracy; (6) false 11 arrest and imprisonment; (7) violation of Cal. Civ. Code § 52.1. 12 13 II. STANDARD 14 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted 15 only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to 16 support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th 17 Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff’s 18 complaint are taken as true and construed in the light most favorable to the plaintiff. See 19 Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 20 detailed factual allegations are not required, factual allegations “must be enough to raise a 21 right to relief above the speculative level.” Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 22 1955, 1965 (2007). 23 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements 24 of a cause of action will not do.” Id. “[W]here the well-pleaded facts do not permit the court 25 to infer more than the mere possibility of misconduct, the complaint has alleged - but it has 26 not show[n] that the pleader is entitled to relief.” Ashcroft v. Iqbal, __ U.S. __, 129 S,Ct. 27 1937, 1950 (2009) (internal quotation marks omitted). Although “A plaintiff’s obligation to prove the ‘grounds’ of his ‘entitle[ment] to 28 3 10cv1057 BTM(BLM) 1 III. DISCUSSION 2 Defendants move to dismiss Plaintiffs’ civil conspiracy claim, Cal. Civ. Code § 52.1 3 claim, and Monell claim for failure to state a claim. The Court grants Defendants’ motion as 4 to the conspiracy claim and Monell claim, but denies the motion as to the § 52.1 claim. 5 6 A. Conspiracy 7 In their fifth cause of action, Plaintiffs allege that Defendants “combined and agreed 8 to detain Plaintiffs without lawful justification, physically assault, falsely arrest, falsely 9 imprison, falsely book, and maliciously prosecute the Plaintiffs on charges they knew to be 10 untrue and to cover up Defendants’ unlawful actions and omissions against the Plaintiffs.” 11 (Compl. ¶ 47.) Plaintiffs allege that Defendants committed acts in furtherance of the 12 conspiracy, including arresting Plaintiffs without probable cause, physically assaulting 13 Plaintiffs, providing false evidence to San Diego Deputy District Attorneys, and declining to 14 investigate Plaintiffs’ misconduct claim. (Compl. ¶¶ 48-49.) 15 Defendants contend that Plaintiffs cannot bring a conspiracy claim under 42 U.S.C. 16 § 1983, because in the context of § 1983 litigation, conspiracy allegations are used to 17 transmute private action into state action to satisfy § 1983's color of law element. 18 Defendants argue that there is no private actor in this case and that, therefore, there is no 19 basis for a conspiracy claim. Defendants misinterpret the law governing conspiracy claims 20 under § 1983. Although conspiracy allegations may establish liability on the part of a private 21 individual when that individual conspires with a state actor, see Franklin v. Fox, 312 F.3d 22 423, 441 (9th Cir. 2002), conspiracy claims may also be made against two or more state 23 actors. For example, in Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the Ninth 24 Circuit held that the plaintiff had alleged a conspiracy claim under § 1983 against the 25 defendant prison officials. See also Crowe v. County of San Diego, 608 F.3d 406, 440 (9th 26 Cir. 2010) (“Establishing liability for a conspiracy between a private actor and a state actor 27 28 4 10cv1057 BTM(BLM) 1 is no different from establishing liability for a conspiracy between two state actors.”).1 2 Plaintiffs’ conspiracy claim fails for a different reason. Plaintiffs’ conspiracy claim fails 3 because Plaintiffs have not alleged sufficient facts supporting the existence of a conspiracy. 4 To establish a conspiracy under § 1983, a plaintiff must satisfy the following elements: (1) 5 the existence of an express or implied agreement among the defendant officers to deprive 6 him of his constitutional rights; and (2) an actual deprivation of those rights resulting from 7 that agreement. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010). Plaintiffs have not 8 alleged facts showing the existence of an agreement among Defendants to violate their 9 constitutional rights. Even assuming that there were constitutional violations, such 10 misconduct does not establish the existence of an agreement among Defendants to violate 11 Plaintiffs’ civil rights. 12 Accordingly, the Court grants Defendants’ motion to dismiss as to Plaintiffs’ fifth cause 13 of action for conspiracy. Plaintiffs may amend their complaint to set forth specific facts in 14 support of their conspiracy claim. 15 16 B. Monell Claim 17 Plaintiffs’ second cause of action asserts a Monell claim against the County of San 18 Diego. Plaintiffs allege that on information and belief, the County, through its Sheriff’s 19 Department has an unlawful policy, custom or habit of: permitting or condoning the 20 unnecessary and unjustified use of force by sheriff’s deputies; permitting or condoning acts 21 of unlawful detention, false arrest and unlawful search and seizure; and inadequate hiring, 22 training, supervision and discipline of deputies. (Compl. ¶¶ 32-35.) 23 Previously, the Ninth Circuit held that a Monell claim was sufficient to withstand a 24 motion to dismiss even if the claim was based on “nothing more than a bare allegation that 25 1 26 27 28 Defendants also argue that under California law, one cannot be held liable for conspiring to violate Cal. Civ. Code § 52.1. However, none of the authority cited by Defendants precludes a claim for conspiracy to violate § 52.1. Indeed, courts have allowed plaintiffs to pursue conspiracy claims under § 52.1. See e.g., Garcia v. City of Sanger, 2009 WL 13623693, at *10 (E.D. Cal. May 14, 2009) (granting plaintiff leave to amend complaint to allege a claim for conspiracy to violate § 52.1); Garcia v. City of Merced, 637 F. Supp. 2d 731, 758 (E.D. Cal. Jan. 10, 2008) (same). 5 10cv1057 BTM(BLM) 1 the individual officers’ conduct conformed to official policy, custom, or practice.” Karim- 2 Panahi v. Los Angeles Dept., 839 F.2d 621, 624 (9th Cir. 1988) (internal quotation marks 3 and citation omitted). However, since then, Twombly and Iqbal have made it clear that 4 conclusory allegations that merely recite the elements of a claim are insufficient for 12(b)(6) 5 purposes. 6 Here, Plaintiffs’ Monell claim consists of formulaic recitations of the existence of 7 unlawful policies, customs, or habits. Plaintiffs do not allege any specific facts giving rise to 8 a plausible Monell claim. Therefore, Defendants’ motion to dismiss is granted as to 9 Plaintiffs’ second cause of action. The Court grants Plaintiffs leave to amend their complaint 10 to make factual allegations in support of their Monell claim. 11 Defendants move to dismiss the Complaint as to Sheriff William Kolender on the 12 ground that there are no allegations of misconduct by Kolender. The Court notes that it is 13 unclear whether Plaintiffs intend Kolender to be a defendant. Although Kolender is included 14 in a list of defendants in Paragraph 3 of the Complaint, Kolender is not listed as a defendant 15 in the caption of the Complaint, and it does not appear that he has been served. At any rate, 16 Kolender would be an appropriate defendant to the extent Plaintiffs state a Monell claim 17 based on Sheriff’s Department policies or practices.2 18 19 C. Section 52.1 Claim 20 California Civil Code § 52.1 gives rise to a claim where “a person or persons, whether 21 or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts 22 to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any 23 24 25 26 27 28 2 Relying on Venegas v. County of Los Angeles, 32 Cal. 4th 820 (2004), Defendants contend that the County cannot be held liable in connection with any policy pertaining to the Sheriff’s law enforcement activities because the Sheriff is a state actor not a final county policy maker when engaged in law enforcement functions. However, this Court follows Brewster v. Shasta County, 275 F.3d 803 (9th Cir. 2001), in which the Ninth Circuit held that county sheriffs in California act on behalf of the county, not the state, when investigating crime. See Streit v. County of Los Angeles, 236 F.3d 552, 561 (9th Cir. 2001) (explaining that when determining section 1983 liability, federal courts must undergo an “independent analysis of California’s constitution, statutes, and case law.”) (Emphasis added). 6 10cv1057 BTM(BLM) 1 individual or individuals of rights secured by the Constitution or laws of the United States, or 2 of the rights secured by the Constitution or laws of this state.” Plaintiffs contend that 3 Defendants violated § 52.1 by their “acts of unjustified physical violence, unlawful detention, 4 false arrest and imprisonment,” which constituted unlawful seizures. (Compl. ¶ 57.) 5 Defendants argue that the County cannot be sued for violating § 52.1 because it is 6 not a “person” within the meaning of the statute. However, the County can be held liable 7 under the theory of respondeat superior pursuant to Cal. Gov’t Code § 815.2(a), which 8 provides: “A public entity is liable for injury proximately caused by an act or omission of an 9 employee of the public entity within the scope of his employment if the act or omission 10 would, apart from this section, have given rise to a cause of action against that employee 11 or his personal representative.” See Ohlsen v. County of San Joaquin, 2008 WL 2331996, 12 at * 5 (E.D. Cal. June 4, 2008) (holding that plaintiff prevailed on his § 52.1 claims against 13 the County on a theory of respondeat superior based on sheriff’s deputies’ warrantless entry 14 and arrest of plaintiff in his home); Santos v. City of Culver City, 228 Fed. Appx. 655 (9th Cir. 15 2007) (reversing grant of summary judgment and remanding to district court for consideration 16 of claim that City was liable for violation of § 52.1 under the theory of respondeat superior). 17 Defendants also argue that Plaintiffs have failed to state a § 52.1 claim because 18 Plaintiffs have not identified threats, intimidation, or coercion independent of the alleged 19 constitutional violation. Defendants rely on Justin v. City and County of San Francisco, 2008 20 WL 1990819, at *9 (N.D. Cal. 2008), where the court held, “Section 52.1 is only applicable 21 when a defendant intends by his or her conduct to interfere with a separate, affirmative right 22 enjoyed by a plaintiff; it does not apply to a plaintiff’s allegation of use of excessive force 23 absent a showing that the act was done to interfere with a separate state or federal 24 constitutional right.” Id. at * 9. 25 In Venegas v. County of Los Angeles, 32 Cal. 4th 820 (2004), however, the California 26 Supreme Court did not say anything about a requirement that the use of a threat, 27 intimidation, or coercion be separate and apart from the alleged constitution violation. In 28 Venegas, the plaintiffs brought a claim under § 52.1 for unreasonable search and seizure. 7 10cv1057 BTM(BLM) 1 The California Supreme Court held that the California Court of Appeal correctly held that 2 plaintiffs adequately stated a cause of action under § 52.1 because plaintiffs need only 3 allege that the unconstitutional search and seizure violations “were accompanied by the 4 requisite threats, intimidation, or coercion.” Id. at 843. (Emphasis added.) It does not 5 appear that the plaintiffs in Venegas alleged that there was any use of force or coercion 6 beyond the unreasonable search and arrest. 7 Based on Venegas, courts within the Ninth Circuit have disagreed with Justin, and 8 have held that plaintiffs may base a § 52.1 claim on the threats, intimidation, or coercion 9 exercised in connection with the alleged use of excessive force or unreasonable search or 10 seizure. For example, in Haynes v. City and County of San Francisco, 2010 WL 2991732, 11 at * 7 (N.D. Cal. July 28, 2010), the court held that the act underlying the excessive force 12 claim – pushing plaintiff into the wall– was sufficient evidence to create a genuine issue of 13 material fact as to whether the defendant acted with threats, intimidation, or coercion. See 14 also Knapps, 647 F. Supp. 2d at 1168 (explaining that because the force used by the 15 defendant officers was excessive, the defendants were liable under § 52.1 - “The elements 16 of a section 52.1 excessive force claim are essentially identical to those of a §1983 17 excessive force claim.”); Moreno v. Town of Los Gatos, 267 Fed. Appx. 665 (9th Cir. 2008) 18 (reversing dismissal of §52.1 claim because officers’ threat to arrest some of the plaintiffs 19 and actual arrest of others may have coercively interfered with their Fourth Amendment 20 rights). 21 The Court is not convinced that § 52.1 requires that there be threats, intimidation, or 22 coercion beyond the unconstitutional use of force or unreasonable search or seizure. 23 Accordingly, the Court denies Defendants’ motion as to Plaintiffs’ § 52.1 claim. 24 25 IV. CONCLUSION 26 For the reasons discussed above, Defendants’ motion to dismiss is GRANTED IN 27 PART and DENIED IN PART. Defendants’ motion is GRANTED as to Plaintiffs’ second 28 cause of action (Monell claim) and Plaintiff’s fifth cause of action (civil conspiracy). These 8 10cv1057 BTM(BLM) 1 claims are DISMISSED for failure to state a claim. Defendants’ motion is otherwise 2 DENIED. 3 deficiencies identified above. Any amended complaint must be filed within 20 days of the 4 entry of this order. If no amended complaint is filed by the 20th day, Defendants shall file 5 an answer to the original complaint within 10 days thereafter. 6 IT IS SO ORDERED. The Court grants Plaintiffs leave to amend their complaint to correct the 7 DATED: February 14, 2011 8 9 10 Honorable Barry Ted Moskowitz United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 10cv1057 BTM(BLM)
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