Schwenk v. Chula Vista Police Department et al, No. 3:2011cv02069 - Document 25 (S.D. Cal. 2013)
Court Description: ORDER Granting In Part and Denying In Part 16 Defendants' Motion to Dismiss. The Court GRANTS IN PART and DENIES IN PART Defendants motion to dismiss, and DENIES Defendants motion to strike. If Plaintiff wishes to amend his complaint only as to the false-imprisonment claim, he may do so by May 2, 2013. Signed by Judge M. James Lorenz on 4/18/2013. (sjt)(jrd)
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Schwenk v. Chula Vista Police Department et al Doc. 25 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 KENNETH SCHWENK, 14 Plaintiff, 15 v. 16 CHULA VISTA POLICE DEPARTMENT, et al., 17 Defendants. 18 19 ) ) ) ) ) ) ) ) ) ) ) Case No. 11-cv-2069-L(JMA) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [DOC. 16] On September 8, 2011, Plaintiff Kenneth Schwenk commenced this action against 20 Defendant Chula Vista Police Department (“CVPD”) alleging violations of his civil rights under 21 28 U.S.C. § 1983 along with other tort claims. Thereafter, Plaintiff amended his complaint to 22 add Defendant City of Chula Vista (“City”). Defendants now move to dismiss the Second 23 Amended Complaint (“SAC”) or, in the alternative, strike portions of the SAC. Plaintiff 24 opposes. 25 The Court found this motion suitable for determination on the papers submitted and 26 without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 23.) For the following reasons, the Court 27 GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss, and DENIES 28 Defendants’ motion to strike. 11cv2069 Dockets.Justia.com 1 I. BACKGROUND 2 This action arises from Plaintiff getting arrested at the Port of San Diego. (SAC ¶ 9.) At 3 the time of the incident, Plaintiff was an employee of “San Diego Glass,” a glass and window 4 repair company based in La Mesa, California. (Id. ¶ 10.) 5 About a year before the arrest, on or about September 13, 2009, Anthony’s Fish Grotto, a 6 restaurant located in Chula Vista, California, hired Plaintiff through San Diego Glass to repair a 7 window that was broken during a burglary that took place the day before. (SAC ¶ 12.) Plaintiff 8 “made contact” with the window frame and surrounding area in order to complete the glass 9 installation at the restaurant. (Id. ¶ 13.) He concluded the installation on September 15, 2009. 10 (Id.) 11 On or about October 17, 2010, as Plaintiff was about to leave on a cruise, officers from 12 the San Diego Harbor Police arrested Plaintiff and took him off of the cruise ship. (SAC ¶ 14.) 13 The arrest was based on a warrant issued by the CVPD regarding the burglary at Anthony’s Fish 14 Grotto on September 12, 2009. (Id.) According to Plaintiff, CVPD alleged that he was involved 15 in the September 12, 2009 burglary based on his fingerprints found on the window frame that he 16 touched during the window repair. (Id. ¶ 15.) Furthermore, Plaintiff alleges that “CVPD 17 possessed video surveillance footage from Anthony’s Fish Grotto which reflects the actual 18 individual who was involved in the burglary on September 12, 2009.” (Id. ¶ 16.) Plaintiff 19 contends that the surveillance video “clearly reflects that Plaintiff had no involvement in the 20 burglary whatsoever.” (Id.) Despite the video and the “knowledge of the true identity of the 21 person involved in the burglary,” Plaintiff alleges that Defendants issued a warrant that resulted 22 in his arrest and detainment. (Id. ¶ 17.) 23 On September 8, 2011, Plaintiff commenced this action against CVPD alleging violations 24 of his civil rights under 28 U.S.C. § 1983 along with claims for negligence and false 25 imprisonment. The Court granted CVPD’s motion to dismiss and gave Plaintiff leave to amend 26 his complaint. Thereafter, Plaintiff amended his complaint to add the City as a defendant. The 27 Court then granted the parties’ joint motion to give Plaintiff leave to again amend his complaint 28 but for the express purpose of dismissing his negligence claim with prejudice. Though Plaintiff 2 11cv2069 1 was given until June 28, 2012 to file his SAC, he did not actually file his SAC until September 2 11, 2012. Defendants now move to dismiss the SAC or, in the alternative, strike portions of the 3 SAC. Plaintiff opposes. 4 5 II. LEGAL STANDARD 6 The court must dismiss a cause of action for failure to state a claim upon which relief can 7 be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal 8 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court 9 must accept all allegations of material fact as true and construe them in light most favorable to 10 the nonmoving party. Cedars-Sanai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 11 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not “necessarily 13 assume the truth of legal conclusions merely because they are cast in the form of factual 14 allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) 15 (internal quotation marks omitted). In fact, the court does not need to accept any legal 16 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 17 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed 18 factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ 19 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 20 of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Instead, the 21 allegations in the complaint “must be enough to raise a right to relief above the speculative 22 level.” Id. Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual 23 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 24 at 678 (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff 25 pleads factual content that allows the court to draw the reasonable inference that the defendant is 26 liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability 27 requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 28 Id. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory 3 11cv2069 1 or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 2 F.2d 530, 534 (9th Cir. 1984). 3 Generally, courts may not consider material outside the complaint when ruling on a 4 motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 5 (9th Cir. 1990). However, documents specifically identified in the complaint whose authenticity 6 is not questioned by parties may also be considered. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 7 (9th Cir. 1995) (superceded by statutes on other grounds). Moreover, the court may consider the 8 full text of those documents, even when the complaint quotes only selected portions. Id. It may 9 also consider material properly subject to judicial notice without converting the motion into one 10 for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 11 12 III. DISCUSSION1 13 A. 14 Defendants seek an order from the Court dismissing this action under Federal Rule of Involuntary Dismissal Under Federal Rule of Civil Procedure 41(b) 15 Civil Procedure 41(b). (Defs.’ Mot. 5:14–6:28.) In determining whether to dismiss a case for 16 failure to comply with a court order, the district court must weigh five factors: (1) the public’s 17 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 18 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 19 merits; and (5) the availability of less drastic alternatives. Ferdik v. Bonzelet, 963 F.2d 1258, 20 1260-61 (9th Cir. 1992) (citing Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986); 21 Henderson v. Duncan, 779 F.2d 1421, 1423-24 (9th Cir. 1986)); see also In re Eisen, 31 F.3d 22 1447, 1451 (9th Cir. 1994); Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). “Although it is 23 preferred, it is not required that the district court make explicit findings in order to show that it 24 considered these factors[.]” Ferdik, 782 F.2d at 831. 25 Defendants argue that after Plaintiff failed to file an amended complaint until 79 days 26 1 the SAC confusing, and impermissibly combining 27 multipleDefendants describe of action.as vague,Mot. 7:1–28.) This appears to be a Rule 8 claims in one cause (Defs.’ reviewing the motion more closely, Defendants do not make a request to the 28 challenge, but after any other grounds. Court on Rule 8 or 4 11cv2069 1 after it was due, each factor enumerated above favors dismissal. Conversely, Plaintiff argues 2 that each factor weighs against dismissal. The Court agrees with Plaintiff. For the first factor, the Ninth Circuit found in Eisen that a four-year delay is “clearly 3 4 unreasonable,” but in Ash, it found that an approximate four-week delay “[did] not seem to be an 5 usual length of time to let a case sit, particularly where there is no evidence of prejudice to the 6 defendants.” Eisen, 31 F.3d at 1452; Ash, 739 F.2d at 496. In Ash, the Ninth Circuit also 7 suggested that a six-week delay may not be unreasonable. Ash, 739 F.2d at 496. The 79-day 8 delay in this case was outside that the six-week point, but not by much. Thus, this factor weighs 9 against dismissal. 10 The second factor is usually reviewed in conjunction with the public’s interest in 11 expeditious resolution of litigation to determine if there is unreasonable delay. Eisen, 31 F.3d at 12 1452. And for reasons that include the finding that the first factor weighs against dismissal, the 13 Court also concludes that the second factor also weighs against dismissal. 14 Defendants argue that the third factor favors dismissal because “Plaintiff’s silence prior to 15 filing his SAC after nearly 80 days passed beyond the limits of this Court’s Order suggests that 16 this presumption is warranted.” (Defs.’ Mot. 6:9–13.) Given that the 79-day is not 17 unreasonable, and the SAC was an amendment to merely remove a claim from the First 18 Amended Complaint, without more from Defendants, the Court cannot conclude Defendants 19 were prejudiced by Plaintiff’s delay. In addition, Defendants neither show that there has been 20 any loss of evidence nor a loss of memory by any potential witness. See Eisen, 31 F.3d at 1453 21 (citing Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1281 (9th Cir. 22 1980)). 23 For similar reasons stated above, the Court also finds that the fourth and fifth 24 factors—respectively, the public policy favoring resolution on the merits, and the availability of 25 less drastic sanctions—also weigh against dismissal. See Eisen, 31 F.3d at 1454-55. This case is 26 ready for resolution on the merits, which the filing of Defendants’ motion demonstrates, and 27 there are less drastic sanctions that are available before dismissing this case that were neither 28 requested nor considered. See id. 5 11cv2069 1 In sum, the Court finds that involuntary dismissal of this action under Rule 41(b) is not 2 warranted. See Ferdik, 963 F.2d at 1260-61. 3 4 B. 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: Civil Rights Violations Under 42 U.S.C. § 1983 6 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 7 the alleged violation was committed by a person acting under the color of state law. West v. 8 Atkins, 487 U.S. 42, 28 (1988). Section 1983 is not itself a source of substantive rights, but 9 merely provides “a method for vindicating federal rights elsewhere conferred.” Graham v. 10 Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 11 (1979)). 12 13 14 1. Monell Localities cannot be liable under § 1983 under a theory of respondiat superior. Monell v. 15 Dep’t Soc. Servs., 436 U.S. 658, 691 (1978). In order to state a claim against a locality, a 16 plaintiff must plead facts indicating that the locality directly violated § 1983. Monell liability 17 may arise when a locality has an “official custom or policy” that requires its officers to engage in 18 illegal behavior. Connick v. Thompson, — U.S. —, —, 131 S. Ct. 1350, 1359 (2011). Under 19 Monell, to prevail in a civil action against a local governmental entity, a plaintiff must establish 20 “(1) that he possessed a constitutional right of which he was deprived; (2) that the municipality 21 had a policy; (3) that this policy ‘amounts to deliberate indifference’ to the plaintiff's 22 constitutional right; and (4) that the policy is the ‘moving force behind the constitutional 23 violation.’” Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992) 24 (quoting City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)). 25 “In this circuit, a claim of municipal liability under section 1983 is sufficient to withstand 26 a motion to dismiss ‘even if the claim is based on nothing more than a bare allegation that the 27 individual officers’ conduct conformed to official policy, custom or practice.’” Karim-Panahi v. 28 Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir.1988) (quoting Shah v. Cnty. of Los 6 11cv2069 1 Angeles, 797 F.2d 743, 747 (9th Cir.1986)); see also AE ex rel. Hernandez v. Cnty. of Tulare, 2 666 F.3d 631, 637 (9th Cir. 2012). In AE ex rel. Hernandez, the Ninth Circuit addressed the 3 potential conflicts in the Supreme Court’s jurisprudence on the pleading requirements applicable 4 to civil actions, and concluded that the following standard also applies to Monell claims: 5 6 7 8 9 10 [W]hatever the difference between [Swierkiewicz, Dura Pharmaceuticals, Twombly, Erikson, and Iqbal], we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. 11 AE ex rel. Hernandez, 666 F.3d at 637 (alteration including case names in original) (quoting 12 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). Neither party applies AE ex rel. Hernandez 13 here. 14 In this case, in addition to the factual allegations discussed above regarding the 15 circumstances that led to Plaintiff’s arrest, Plaintiff also alleges that the City and CVPD have a 16 policy, custom, or practice of: (1) “failing to thoroughly investigate crimes prior to arresting and 17 detaining suspects that may or may not be involved in the crime”; (2) “issuing arrest warrants of 18 individuals without a reasonable investigation”; (3) “arresting and detaining innocent individuals 19 without thorough investigation of evidence obtained from crimes”; and (4) “not performing a 20 reasonable review, verification, or inspection of warrants before issuance.” (SAC ¶¶ 26–29.) 21 Coupled with his allegations that Defendants issued a warrant and arrested him despite having 22 surveillance video that notified them that Plaintiff was not the burglar that they sought, Plaintiff 23 adequately gives Defendants fair notice to enable them to defend themselves effectively. See AE 24 ex rel Hernandez, 666 F.3d at 637. Furthermore, the Court finds that taking Plaintiff’s factual 25 allegations as true plausibly suggests an entitlement to relief. See id. 26 // 27 // 28 // 7 11cv2069 1 Accordingly, the Court DENIES Defendants’ motion as to Plaintiff’s Monell claim.2 See 2 AE ex rel. Hernandez, 666 F.3d at 637; see also Wallace v. City of N. Las Vegas, No. 10-cv3 01660, 2011 WL 2971241, at *1-2 (D. Nev. July 20, 2011) (citing Shah, 797 F.2d at 747) 4 (finding the plaintiffs’ allegation that “[t]he failure to provide adequate training and supervision 5 amounts to deliberate indifference which was a proximate cause of Plaintiffs’ injuries” is 6 sufficient to state to a Monell claim). 7 8 9 2. Other constitutional violations Plaintiff also asserts his § 1983 claim based on violations of his Fourth, Fifth, and 10 Fourteenth Amendment rights. (SAC ¶ 33.) Defendants move to dismiss the § 1983 claim for 11 these constitutional violations arguing 12 With regard to his allegation that Plaintiff was “wrongfully seized, detained, and falsely imprisoned/arrested without lawful reason, cause, or excuse,” he fails to plead sufficient facts to show more than a mere possibility of misconduct. [Citation.] Plaintiff therefore fails to state a claim upon which he is entitled to relief. 13 14 15 16 17 18 19 Plaintiff fails to plead sufficient facts to show he was deprived of due process of law, was unreasonably seized, and denied equal protection under the Constitution. [Citation.] Under Iqbal, Plaintiff is no longer permitted to rest on the laurels of legal conclusions. He must support his conclusions with allegations of fact so that the court can draw a reasonable inference that defendant is liable for the misconduct alleged. Plaintiff’s SAC does not provide sufficient facts to make his claims plausible. (Defs.’ Mot. 8:25–9:2.) No further analysis is provided. More importantly, Defendants fail to 20 address the factual allegations Plaintiff includes in his SAC. Consequently, Defendants fail to 21 show that Plaintiff’s § 1983 claim for violations of his Fourth, Fifth, and Fourteenth Amendment 22 rights is legally deficient.3 See Fed. R. Civ. P. 12(b)(6); Iqbal, 556 U.S. at 678. 23 2 Defendants emphasize that Monell liability “cannot be based on isolated or sporadic 24 incidents and certainly may not be predicated on one incident.” (Defs.’ Reply 8:7–23 (emphasis removed).) As a legal proposition, Defendants correctly state the law. However, as discussed 25 above, Plaintiff adequately—albeit barely—alleges facts to sustain his Monell claim. 26 3 Though Plaintiff’s factual allegations may be somewhat bare, his § 1983 claim for constitutional violations appears to be facially plausible. For example, an arrest without 27 probable cause violates the Fourth Amendment and gives rise to a claim for damages under § Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008). Plaintiff’s 28 1983. Harper v. City ofDefendants knew Plaintiff was not the burglary suspect based on the allegations suggest that 8 11cv2069 1 Accordingly, the Court DENIES Defendants’ motion as to Plaintiff’s § 1983 claim for 2 violations of his Fourth, Fifth, and Fourteenth Amendment rights. 3 4 C. 5 “A public entity is liable for injury proximately caused by an act or omission of an False Imprisonment 6 employee of the public entity within the scope of his employment if the act or omission would . . 7 . have given rise to a cause of action against that employee[.]” Cal. Gov’t Code § 815.2(a). “[A] 8 public entity is not liable for an injury resulting from an act or omission of an employee of the 9 public entity where the employee is immune from liability.” Id. § 815.2(b). 10 As Defendants astutely point out, Plaintiff’s false-imprisonment claim relies solely on 11 California Government Code § 815.2. (Defs.’ Mot. 10:19–26.) But according to Plaintiff, and 12 as Defendants emphasize, officers from the San Diego Harbor Police arrested him (SAC ¶ 14). 13 Plaintiff fails to address this in his opposition. Consequently, Plaintiff fails to allege a plausible 14 claim against Defendants for the actions of non-party officers of the San Diego Harbor Police 15 under a respondiat superior theory codified in § 815.2. See Cal. Gov’t Code § 815.2; Iqbal, 556 16 U.S. at 678. 17 Accordingly, the Court GRANTS Defendants’ motion as to Plaintiff’s false- 18 imprisonment claim. 19 20 D. 21 Rule 12(f) provides that a federal court may strike from the pleadings any insufficient Defendants’ Request to Strike Paragraphs in the SAC 22 defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). 23 The function of a motion to strike is to avoid the unnecessary expenditures that arise throughout 24 litigation by dispensing of any spurious issues prior to trial. Sidney-Vinstein v. A.H. Robins Co., 25 697 F.2d 880, 885 (9th Cir. 1983). 26 Defendants contend that paragraphs 25 through 32 of the SAC “contain only legal 27 which leads 28 surveillance video, supported byto a reasonable inference that the warrant for Plaintiff’s arrest may not have been probable cause. 9 11cv2069 1 conclusions regarding supposed inappropriate customs of practices of Defendants,” and “[t]he 2 SAC is devoid of factual support for these allegations.” (Defs.’ Mot. 11:2–10.) Thus, they 3 argue, “Plaintiff has failed to support the statements with even one fact[,]” and “the bald 4 assertions are immaterial and impertinent and only serve to publicly prejudice Defendants.” (Id.) 5 Defendants provide no further legal analysis. 6 “‘Immaterial’ matter is that which has no essential or important relationship to the claim 7 for relief or defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 8 1993), rev’d on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). And 9 “‘[i]mpertinent’ matter consists of statements that do not pertain, and not necessary, to the issues 10 in questions.” Id. Based on the Court’s findings above, it is clear that Defendants’ argument 11 lacks merit. Thus, Defendants fail to show that the paragraphs identified in the SAC are either 12 immaterial or impertinent. See Fed. R. Civ. P. 12(f); Fantasy, 984 F.2d at 1527. 13 Accordingly, the Court DENIES Defendants’ motion to strike. 14 15 IV. CONCLUSION & ORDER 16 Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART 17 Defendants’ motion to dismiss, and DENIES Defendants’ motion to strike. If Plaintiff wishes to 18 amend his complaint only as to the false-imprisonment claim, he may do so by May 2, 2013. 19 IT IS SO ORDERED. 20 21 DATED: April 18, 2013 22 23 M. James Lorenz United States District Court Judge 24 COPY TO: 25 HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE 26 ALL PARTIES/COUNSEL 27 28 10 11cv2069
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