Baker v. Ensign, No. 3:2011cv02060 - Document 51 (S.D. Cal. 2013)
Court Description: ORDER Granting in Part and Denying in Part 26 Motion to Dismiss filed by the City of San Diego, Lansdowne, and Spitzer. The motion is Granted as to the First Amendment and Fourteenth Amendment claims against Spitzer. The claims are dismissed with out prejudice. To the extent the state law claims are asserted against Movants, the motion is Granted as to the state law claims. The state law claims are dismissed with prejudice. The motion is Denied as to the remaining claims. Signed by Judge John A. Houston on 3/20/2013. (All non-registered users served via U.S. Mail Service)(leh)
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Baker v. Ensign Doc. 51 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 CAMERON BAKER, Plaintiff, 11 12 13 14 15 16 17 v. JASON ENSIGN, Defendants. AND RELATED COUNTER-CLAIM AND THIRD PARTY COMPLAINT ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 11cv2060 JAH (WVG) ORDER GRANTING IN PART AND DENYING IN PART THIRD PARTY DEFENDANTS CITY OF SAN DIEGO, WILLIAM LANSDOWNE AND DAVID SPITZER’S MOTION TO DISMISS [Doc. No. 26] INTRODUCTION 18 On June 24, 2011, Jason Ensign, Defendant/Counter-claimant, filed a counterclaim 19 against Cameron Baker and a third party complaint against City of San Diego, San Diego 20 Police Chief William Lansdowne, David Spitzer, Elite Show Services, Inc., Parham Hirari- 21 Moghaddam, Tyler Wenbourne, Matthew Keasler, Joel Brase, Jason Biggers, Sifakis, and 22 Does 1-100. Third Party Defendant City of San Diego (“the City”) removed the action 23 to federal court on September 6, 2011. Ensign filed an amended counterclaim and third 24 party complaint (“FATPC”) on December 6, 2011, asserting claims for violation of civil 25 rights under 42 U.S.C. § 1983, Monell, malicious prosecution, assault and battery, false 26 arrest/false imprisonment, intentional infliction of emotional distress, negligence, and 27 negligent employment, supervision and training. 28 Thereafter, City of San Diego, Lansdowne, and Spitzer (“Movants”) filed a motion 11cv2060 Dockets.Justia.com 1 to dismiss the third party complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 2 After seeking additional time to do so, Ensign filed an opposition to the motion. Movants 3 filed a reply. 4 LEGAL STANDARD 5 Defendant seeks dismissal of the complaint for failure to state a claim. 6 12(b)(6) tests the sufficiency of the complaint. See Navarro v. Block, 250 F.3d 729, 732 7 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks 8 a cognizable legal theory. See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 9 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) 10 authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”). 11 Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet 12 fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a 13 plaintiff need not give “detailed factual allegations,” he must plead sufficient facts that, 14 if true, “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 15 550 U.S. 544, 545 (2007). Rule 16 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 17 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 18 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially 19 plausible when the factual allegations permit “the court to draw the reasonable inference 20 that the defendant is liable for the misconduct alleged.” Id. In other words, “the non- 21 conclusory ‘factual content,’ and reasonable inferences from that content, must be 22 plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 23 572 F.3d 962, 969 (9th Cir. 2009). “Determining whether a complaint states a plausible 24 claim for relief will ... be a context-specific task that requires the reviewing court to draw 25 on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950. 26 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 27 truth of all factual allegations and must construe all inferences from them in the light most 28 favorable to the nonmoving party. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2 11cv2060 1 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, 2 legal conclusions need not be taken as true merely because they are cast in the form of 3 factual allegations. See Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); 4 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on 5 a motion to dismiss, the Court may consider the facts alleged in the complaint, documents 6 attached to the complaint, documents relied upon but not attached to the complaint when 7 authenticity is not contested, and matters of which the Court takes judicial notice. See 8 Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a court determines 9 that a complaint fails to state a claim, the court should grant leave to amend unless it 10 determines that the pleading could not possibly be cured by the allegation of other facts. 11 See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). DISCUSSION 12 13 Third party defendants seek an order dismissing the action against them with 14 prejudice. They contend the amended third party complaint which asserts nine causes of 15 action appears to assert only the first two, the claim for violation of civil rights under 16 section 1983, and the Monell claim, against the moving parties. However, the Movants 17 address the state causes of action in addition to the first two causes of action in their 18 motion. 19 I. Request for Judicial Notice Movants seek judicial notice of documents in support of their motion to dismiss. 20 21 A. Legal Standard 22 Generally, “a district court may not consider any material beyond the pleadings in 23 ruling on a Rule 12(b)(6) motion.” Lee v. Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) 24 (citation omitted). “When matters outside the pleadings are presented to and not 25 excluded by the court, the motion shall be treated as one for summary judgment and 26 disposed of as provided in Rule 56. . . .” Id. (citation omitted). A court, however, may 27 look to facts proper for judicial notice without converting a Rule 12(b)(6) motion to one 28 for summary judgment even though those facts are beyond the complaint. See Mack v. 3 11cv2060 1 S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986), abrogated in part on other 2 grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991). 3 Federal Rule of Evidence 201 allows a court to take judicial notice of an 4 adjudicative fact “not subject to reasonable dispute in that it is . . . capable of accurate and 5 ready determination by resort to sources whose accuracy cannot be reasonably 6 questioned.” “Adjudicative facts are those to which the law is applied in the process of 7 adjudication. They are the facts that normally go to the jury in a jury case.” Grason Elec. 8 Co. v. Sacramento Mun. Util. Dist., 571 F. Supp. 1504, 1521 (E.D. Cal. 1983) (citation 9 omitted). 10 B. Analysis 11 Defendant asks the Court to take judicial notice of two documents, attached as 12 Exhibits 1 and 2 to their request for judicial notice. See Doc. No. 26-2. Exhibit 1 is a 13 court order filed in People of the State of California v. Jason Ensign, Superior Court of 14 California, County of San Diego dated May 9, 2011. Exhibit 2 is a court order containing 15 factual findings filed August 5, 2011, in the same case. In response, Ensign argues the 16 documents may not be used for the truth of the factual findings contained therein. 17 Movants do not respond to this argument. 18 Here, the Court first notes that, unless Movants intended to request that this Court 19 take judicial notice of the fact that the documents attached as Exhibits 1 and 2 merely 20 exist, it appears Movants misapprehend the concept of judicial notice. Movants’ request 21 fails to list the adjudicative facts as to which Movants would like this Court to take judicial 22 notice. Nevertheless, upon review of the motion to dismiss, it is clear Movants seek the 23 Court take judicial notice of the findings of facts set forth in the orders. While a court 24 may take judicial notice of the fact that a case has been filed in another court, “[a]s a 25 general rule, a court may not take judicial notice of proceedings or records in another cause 26 so as to supply, without formal introduction of evidence, facts essential to support a 27 contention in a cause then before it.” M/V Am. Queen v. San Diego Marine Constr. 28 Corp., 708 F.2d 1483, 1491 (9th Cir.1983); see also Wyatt v. Terhune, 315 F.3d 1108, 4 11cv2060 1 1114 n.5 (9th Cir. 2003) (“Factual findings in one case ordinarily are not admissible for 2 their truth in another case through judicial notice”). As such, the Court denies Movants’ 3 request for judicial notice. 4 II. First Cause of Action for Violation of 42 U.S.C. Section 1983 5 Movants argue Ensign fails to state a claim under section 1983 against either 6 Spitzer or Lansdowne. To state a claim for violation of constitutional rights under 42 7 U.S.C. § 1983, Plaintiff must allege facts to show that (1) a right secured by the 8 Constitution or the laws of the United States was violated, and (2) the alleged violation 9 was committed by a person acting under the color of state law. See Long v. County of Los 10 Angeles, 442F.3d 1178, 1185 (9th Cir. 2006). 11 A. Lansdowne 12 Movants maintain that although the first cause of action excludes Lansdowne, the 13 prayer for punitive and exemplary damages included in the first cause of action does not 14 specifically exclude him. However, upon review of the third party complaint, it is clear the 15 first cause of action is not asserted against Lansdowne, as Ensign sets forth no factual 16 allegations involving Lansdowne and specifically excludes him in the heading. The failure 17 to exclude him from the prayer from damages appears inadvertent. Accordingly, the 18 motion to dismiss the claim against Lansdowne is DENIED as moot. 19 B. Spitzer 20 Movants contend Ensign’s section 1983 claim fails because Spitzer did not violate 21 Ensign’s constitutional rights and Spitzer is entitled to qualified immunity. As an initial 22 matter, the third party complaint fails to succinctly and clearly present the elements of 23 each section 1983 claim so as to provide fair notice to the defendants. See Jones v. 24 Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir 25 1984). In the poorly drafted complaint, Ensign’s first cause of action includes all claims 26 sought under section 1983, including excessive force; false arrest; First Amendment, 27 freedom of speech and First Amendment, retaliation. The allegations contained in the 28 section entitled “First Cause of Action” are conclusory allegations against Spitzer and 5 11cv2060 1 others. Ensign, however, “refers and repleads each and every allegation contained” in the 2 previous paragraphs. This requires the parties and this Court to choose which facts 3 support the particular alleged constitutional violation in support of the first cause of 4 action. While this may be grounds for dismissing the first cause of action in its entirety, 5 this Court will address the specific claims as to Defendant Spitzer to determine whether 6 Ensign states a claim. 7 Ensign alleges San Diego City Council approved San Diego City Municipal 8 Ordinance 590202(a)(7), which makes it unlawful to “behave in so noisy, boisterous or 9 rowdy a manner as to disturb spectators at any event” and authorizes San Diego Police 10 Department and Qualcomm security to eject an individual who behaves in such a manner 11 from the stadium. FATPC ¶ 12. According to Ensign’s allegations asserted against 12 Spitzer, he was arrested by Elite security staff at Qualcomm Stadium after he was evicted 13 from the stadium for waving his middle finger at a large aggressive crowd. See id. ¶¶ 20, 14 21. He was beaten, kicked, pummeled, pinned to the ground and handcuffed by the Elite 15 staff. Id. ¶ 20. The Elite staff handed Ensign over to Spitzer, the San Diego Police Officer 16 on duty, and Hirari, an Elite staff member, told Spitzer he evicted Ensign for using his 17 middle finger towards a crowd and Hirari admitted to physically grabbing Ensign before 18 Ensign grabbed a railing. Id. ¶ 21. 19 nothing to provoke the beating meted out by the Elite staff. Id. Ensign further alleges 20 Spitzer, along with others, fabricated reports to create a picture of an out of control Ensign 21 resisting arrest and committing battery., and Baker, an employee of Elite, additionally 22 reported that Ensign punched him in the jaw without provocation causing serious injury 23 and asserted to law enforcement and others that he had no prior existing injury to his jaw. 24 Id. ¶¶ 23, 24. 25 1. First Amendment Three Charger fans told Spitzer that Ensign did 26 Movants argue the claims for violation of Ensign’s First Amendment rights fails 27 because Ensign had no constitutionally protected right to “flip off” the crowd and Spitzer 28 was not present when Ensign was removed from the stands by Elite staff. They further 6 11cv2060 1 argue the retaliation claim fails because Spitzer had no duty to release Ensign under 2 California Penal Code Section 849(b). They maintain this code section provided Spitzer 3 the discretion to release Ensign and it contains no private right of action. 4 5 In opposition, Ensign argues Spitzer retaliated against Ensign for exercising his First Amendment rights and the causes of action flow from the retaliation. 6 Movants include a small discussion of public forum and speech while Ensign 7 prefaces his opposition with an extensive discussion regarding freedom of speech and the 8 unconstitutionality of the ordinance and Charger’s Fan Code of Conduct which lead to 9 Ensign’s arrest. The Court finds it is unnecessary to analyze those First Amendment issues 10 which would require consideration of facts outside the complaint. As currently pled, 11 Ensign fails to state a claim for violation of his First Amendment rights against Spitzer 12 under section 1983. 13 To state a claim for violation of his first amendment rights, Ensign must allege facts 14 showing (1) he engaged in speech or conduct protected under the First Amendment; (2) 15 the defendant took action against him, and (3) the protected speech or conduct or the 16 chilling of the speech or conduct was a substantial motivating factor for the defendant’s 17 actions. See Sloman v. Tadlock, 21 F.3d 1462 (9th Cir. 1994). To state a claim for 18 retaliation, a plaintiff must demonstrate “(1) he engaged in constitutionally protected 19 activity; (2) as a result, he was subjected to adverse action by the defendant that would 20 chill a person of ordinary firmness from continuing to engage in the protected activity; and 21 (3) there was a substantial causal relationship between the constitutionally protected 22 activity and the adverse action.” Blair v. Bethel School Dist., 608 F.3d 540, 543 (9th Cir. 23 2010). 24 As alleged, Ensign fails to show Spitzer’s failure to release him after he was 25 “arrested” by Elite staff was done to prevent Ensign from engaging in protected conduct 26 or speech and, thereby, fails to demonstrate a causal relationship as required to properly 27 assert a claim for violation of his First Amendment rights against Spitzer. Accordingly, 28 the First Amendment clam is dismissed as to Spitzer. 7 11cv2060 1 2. Fourth Amendment 2 Movants argue Spitzer did not violate Ensign’s Fourth Amendment rights as it is 3 clear from the facts alleged that Spitzer conducted an independent investigation and based 4 on the investigation, which included talking with Elite security personnel, there was 5 probable cause to take Ensign into custody and “arrest” him. 6 7 Ensign argues Spitzer had no right to arrest Ensign when he defended himself from an unlawful attack and Spitzer had an independent duty to determine probable cause. 8 A warrantless arrest must be supported by probable cause. See United States v. 9 Bueno-Vargas, 383 F.3d 1104, 1107 (9th Cir. 2004). “The long-prevailing standard of 10 probable cause protects ‘citizens from rash and unreasonable interferences with privacy 11 and from unfounded charges of crime,’ while giving ‘fair leeway for enforcing law in the 12 community’s protection.’” Maryland v. Pringle, 540 U.S. 366, 370 (2003) (quoting 13 Brinegar v. United States, 338 U.S. 160, 176 (1949)). For purposes of the Fourth 14 Amendment,“[p]robable cause exists when, under the totality of the circumstances known 15 to the arresting officers, a prudent person would have concluded that there was a fair 16 probability that [the suspect] had committed a crime.” Peng v. Mei Chin Penghu, 335 17 F.3d 970, 976 (9th Cir. 2003) (quoting United States v. Buckner, 179 F.3d 834, 837 (9th 18 Cir. 1999) (citations and quotations omitted)). “Arresting officers have probable cause 19 to make warrantless arrests if, at the moment of arrest, facts and circumstances within 20 their knowledge and of which they have reasonably trustworthy information are sufficient 21 to warrant a prudent man in believing that the arrested person had committed or was 22 committing an offense.” United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984). 23 Looking to the circumstances known to Spitzer at the time of Ensign’s arrest as 24 alleged in the complaint and construing all inferences in Ensign’s favor, this Court finds 25 Ensign sufficiently alleges Spitzer did not have probable cause to arrest Ensign. The 26 motion to dismiss the claim for violation of Ensign’s Fourth Amendment rights is 27 DENIED. 28 8 11cv2060 1 3. Fourteenth Amendment 2 Movants argue Spitzer did not violate Ensign’s Fourteenth Amendment rights 3 because nothing in the factual allegations demonstrate actions by Spitzer that shocks the 4 conscience. Substantive due process protects from conduct by the government that 5 “shocks the conscience.” See United States v. Salerno, 481 U.S. 739, 746 (1987). Intent 6 to inflict harm unrelated to a legitimate law enforcement objective “shocks the conscience” 7 and gives rise to liability. See Porter v. Osborn, 546 F.3d 1131, 1140 (9th Cir. 2008). 8 There are no allegations that Spitzer used any force on Ensign much less that he inflicted 9 harm that shocks the conscience. 10 Accordingly, Ensign fails to properly allege his First Amendment and Fourteenth 11 Amendment section 1983 claims against Spitzer and they are dismissed. The motion is 12 DENIED as to the section 1983 claim for violation of Ensign’s Fourth Amendment rights. 13 4. Qualified Immunity 14 Defendants argue Spitzer is shielded by qualified immunity. Specifically, 15 Defendants argue there was no constitutional violation as Spitzer did not violate Ensign’s 16 First, Fourth or Fourteenth Amendment rights, Ensign did not have a First Amendment 17 right to free speech, and Spitzer had probably cause to arrest Ensign. Defendants’ 18 argument in support of their assertion of qualified immunity relies almost entirely on the 19 findings of Judge Kaneshiro in the orders filed in People of the State of California v. Jason 20 Ensign, Superior Court of California, County of San Diego dated May 9, 2011. As 21 discussed above, these documents are outside the pleadings and not subject to judicial 22 notice. As such, the Court will not consider them when addressing Defendants’ motion. 23 Accordingly, Defendants fail to demonstrate Spitzer is entitled to qualified immunity. 24 III. Second Cause of Action, Monell Claim 25 Movants argue Plaintiff fails to state a Monell claim against the City of San Diego 26 and Lansdowne. Municipalities, their agencies, and their supervisory personnel may be 27 held liable for deprivations of constitutional rights resulting from their formal policies or 28 customs. See Monell v. New York Dept. Of Social Servs., 436 U.S. 658, 691-93 (1978). 9 11cv2060 1 A plaintiff may establish liability pursuant to Monell in one of three ways, (1) 2 demonstrating an employee committed a constitutional violation through a policy, practice 3 or custom of a local governmental entity; (2) showing the employee that committed the 4 constitutional violation “was an official with policy-making authority and that the 5 challenged action itself thus constituted an act of official governmental policy”; or (3) 6 demonstrate “an official with policy-making authority ratified a subordinate’s 7 unconstitutional decision or action and the basis for it.” Trevino v. Gates, 99 F.3d 911, 8 918 (9th Cir. 1996). “In this circuit, a claim of municipal liability under section 1983 is 9 sufficient to withstand a motion to dismiss ‘even if the claim is based on nothing more 10 than a bare allegation that the individual officers’ conduct conformed to official policy, 11 custom or practice.” Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th 12 Cir. 1988) (quoting Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)). 13 A. City of San Diego 14 Movants argue the second cause of action fails to state a claim against the City of 15 San Diego, because it consists of conclusory allegations. They specifically argue there are 16 no nonconclusory facts alleging Spitzer, Lansdowne or the City initiated the prosecution 17 against Ensign with malice to support a malicious prosecution claim. Ensign does not 18 specifically address the City in his opposition. 19 In the third party complaint, Ensign alleges Spitzer was acting under the City’s and 20 Lansdowne’s “direction and control, knowingly and intentionally promulgated, 21 maintained, applied, enforced, and suffered the continuation of policies, customs, practices 22 and usages in violation of the First, Fourth, and Fourteenth Amendments respectively to 23 the United States Constitution.” FATPC ¶ 37. Ensign also alleges the City unlawfully 24 provided Elite personnel with police power when it enacted Municipal Code 25 59.0202(a)(7). By doing so, Ensign alleges, the City engaged in a custom, policy, practice 26 of violating sports fans’ First Amendment rights and retaliating by evicting, battering and 27 arresting them. Id. ¶¶ 12, 13. Ensign further alleges the City engaged in a practice and 28 pattern of violating sports fans’ constitutional rights when it unlawfully provided Elite 10 11cv2060 1 personnel police power by assisting in the enforcement of the Chargers’ “Fan Code of 2 Conduct” which is based on the municipal ordinance at issue. Ensign alleges the City had 3 knowledge the municipal ordinance and “Code of Conduct” were unconstitutionally vague 4 and overbroad and was, therefore, unenforceable but continued to enforce the ordinance 5 and code authorizing officers to assault, batter and wrongfully arrest fans attending 6 Chargers games. Id. 7 Ensign also alleges the City maintains policies or customs of permitting the kinds 8 of wrongs that he alleges happened to him by its deliberate indifference to police abuses 9 and failing to fairly and impartially investigate, and discipline or prosecute peace officers 10 who commit acts of felonious dishonesty and crimes of violence. Specifically, Ensign 11 alleges the City had knowledge of repeated allegations of abuse and assaultive misconduct 12 towards Chargers’ fans at Qualcomm stadium, but refused to protect the public by failing 13 to discharge and prosecute Spitzer and others. Id. ¶ 39. He further alleges the City 14 refused to enforce established administrative procedures to insure the safety of detainees 15 and arrestees, and has a custom and practice of failing to discipline officers and employees 16 who have committed acts of abuse. Id. Ensign further alleges the City knew of and 17 sanctioned the practice of falsely arresting, booking and charging victims of abuse by 18 officers with violations of the California Penal Code. Id. Ensign also argues the City failed 19 to adequately train and educate officers in the use of reasonable force, failed to enforce the 20 department’s written regulations with respect to use of force and failed to adequately 21 supervise the actions of officers under their control. Id. Ensign further alleges the City 22 condoned and participated in a practice of prosecuting groundless criminal charges to 23 insulate the City and its officers from civil liability and encouraged a conspiracy of silence 24 among its employees to conceal and further wrongful and illegal conduct by its employees. 25 Id. Ensign further alleges the City engaged in a custom and practice of refusing to provide 26 public prosecutors and criminal defendants exculpatory and impeaching evidence. Id. 27 Although not entirely clear, it appears the constitutional violation Ensign asserts is 28 the security personnel’s use of the authority provided by the City resulted in the violation 11 11cv2060 1 of sports fans’ right to freedom of speech and retaliation against a sports fan for engaging 2 in freedom of speech. While this alone is insufficient to allege a Monell claim, Ensign’s 3 additional allegations regarding the City’s policy and practice are sufficient to allege a 4 Monell claim against the City. 5 B. Lansdowne 6 Movants argue Ensign fails to state a Monell claim against Lansdowne. They argue 7 Plaintiff alleges Lansdowne failed to engage in an administrative investigation in violation 8 of regulations that require California agencies to deal with citizen’s complaints but the 9 third party complaint fails to allege the timely submission of any claim prior to filing the 10 lawsuit. They further argue Ensign’s rights were not violated when he was taken into 11 custody because Spitzer had probable cause to arrest him for battery. Movants also argue 12 the third party complaint fails to allege any personal participation by Lansdowne or that 13 Lansdowne knew about the arrest or prosecution or that they were constitutionally 14 deficient in some way. 15 In opposition, Ensign argues Lansdowne’s failure to carry out statutory 16 requirements to investigate the complaint lays personal liability at his feet. Although not 17 entirely clear, Ensign seems to argue Lansdowne’s failure to sanction Spitzer for his 18 misconduct ratifies the wrongful acts and subjects Lansdowne to liability. 19 Ensign’s argument that Lansdowne’s failure to carry out the investigation appears 20 to suggest Lansdowne himself committed a constitutional violation by not investigating 21 a complaint as required by California. As noted by Movants, there is no allegation that 22 a complaint was filed prior to this lawsuit for Lansdowne to investigate. As such, Ensign 23 fails to allege Lansdowne violated his due process rights. 24 However, Ensign alleges Spitzer was acting under Lansdowne’s direction and control 25 when he engaged in the unconstitutional conduct. Additionally, Ensign alleges Lansdowne 26 engaged in a custom of failing to discipline officers who committed acts of abuse and 27 misconduct. As such, Ensign alleges a Monell claim against Lansdowne. Movants’ motion 28 to dismiss the Monell claim is DENIED. 12 11cv2060 1 IV. State Law Causes of Action 2 Movants argue the state law causes of action are barred because Ensign failed to 3 comply with the Claims Act. Ensign admits he did not file a government tort claim and 4 “submits on City’s request to dismiss City from the pendant state claims.” Opposition at 5 2. Accordingly, to the extent the state law claims are asserted against the Movants, the 6 causes of action are dismissed. CONCLUSION AND ORDER 7 8 Based on the foregoing, IT IS HEREBY ORDERED the City of San Diego, 9 Lansdowne, and Spitzer’s motion to dismiss is GRANTED IN PART AND DENIED IN 10 PART. The motion is GRANTED as to the First Amendment and Fourteenth 11 Amendment claims against Spitzer. The claims are dismissed without prejudice. To 12 the extent the state law claims are asserted against Movants, the motion is GRANTED as 13 to the state law claims. The state law claims are dismissed with prejudice. The motion 14 is DENIED as to the remaining claims. 15 DATED: March 20, 2013 16 17 18 JOHN A. HOUSTON United States District Judge 19 20 21 22 23 24 25 26 27 28 13 11cv2060
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