Jennings v. City of San Diego et al, No. 3:2013cv00322 - Document 17 (S.D. Cal. 2013)
Court Description: ORDER granting 2 Defendant City of San Diego's Motion to Dismiss and Granting 4 Defendant County of San Diego's Motion to Dismiss. Specifically, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs fifth claim as to the City of San Diego. The Court DISMISSES WITHOUT PREJUDICE all claims against the County of San Diego, namely Plaintiffs fourth, fifth, sixth, seventh, ninth, tenth, and eleventh causes of action. If Plaintiff intends to file a Second Amended Complaint in conformity with this Order, then she must do so by July 19, 2013. Signed by Judge M. James Lorenz on 7/8/2013. (sjt)
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Jennings v. City of San Diego et al Doc. 17 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 STEPHANIE JENNINGS, 14 Plaintiff, 15 v. 16 CITY OF SAN DIEGO; COUNTY OF SAN DIEGO; San Diego Police Chief 17 WILLIAM LANSDOWNE; Assistance Chief BOYD LONG; Sergeant JAMES 18 MILANO; and DOES 1-50, inclusive, 19 20 21 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 13-cv-00322-L(NLS) ORDER GRANTING DEFENDANT CITY OF SAN DIEGO’S MOTION TO DISMISS [doc. #2] AND GRANTING DEFENDANT COUNTY OF SAN DIEGO’S MOTION TO DISMISS [doc. #4] On December 19, 2012, Plaintiff Stephanie Jennings commenced this action in the 22 Superior Court of the State of California, in and for the County of San Diego, against the County 23 of San Diego, and the City of San Diego, San Diego Police Chief William Lansdowne, Assistant 24 Chief Boyd Long, Sergeant James Milano (“City Defendants”) and Doe Defendants 1-50, 25 inclusive. She alleges that all of the Defendants violated her civil rights by attacking and falsely 26 arresting her with the intention of chilling her constitutional rights. 27 On February 8, 2013, Defendant City of San Diego removed this action to federal court. 28 The City and County each move to dismiss one or more claims under Federal Rule of Civil 13cv0322 Dockets.Justia.com 1 Procedure 12(b)(6). 2 The Court found these motions suitable for determination on the papers submitted and 3 without oral argument. See CIV. L.R. 7.1(d.1). [Doc. #13.] 4 I. BACKGROUND 5 Plaintiff Jennings is a 51-year-old mother and community volunteer. (Compl. ¶ 1.) She 6 alleges that on the evening of January 7, 2012, she and a group of other middle-aged women (the 7 “Occupellas”) congregated outside the San Diego Civic Center to “sing some songs about social 8 issues to the tune of familiar songs.” (Compl. ¶ 19.) A group of “Occupy San Diego” protestors 9 marched from the Children’s Park into the plaza in front of the center. (Compl. ¶ 21.) At this 10 point, Plaintiff left the singing group and encountered Defendant Sergeant James Milano, who 11 allegedly pushed her to the ground and directed two or three Doe Defendant police officers to 12 arrest her. (Compl. ¶ 23.) She alleges that the Doe Defendant officers arrested her using excessive 13 and unnecessary force. (Compl. ¶ 24.) 14 Defendant Milano and another Doe Defendant officer then drove Plaintiff to Las Colinas 15 Detention Facility, where Plaintiff was placed in a holding cell with 8-10 other women. (Compl. 16 ¶ 26.) She alleges that while in the cell, she notified Doe Defendant police officers and a Doe 17 Defendant nurse that she was a recent kidney transplant recipient, had atrial fibrillation, and 18 needed her medication. (Compl. ¶ 27.) 19 Plaintiff allegedly told officers she needed to take her anti-rejection medication between 20 9:00 - 10:00 p.m., but the officers did not give it to her even though it was in her purse, which 21 was in their possession. (Id.) She also alleges that she developed an intense migraine and vomited 22 inside the holding cell, at which point Doe Defendant officers began yelling at her rather than 23 providing any medical care. (Id.) At about 2:00 a.m., Plaintiff’s husband arrived at the detention 24 facility and bailed her out, at which point she went home. (Compl. ¶ 29.) 25 // 26 // 27 // 28 // 2 13cv0322 1 In her complaint, Plaintiff alleges eleven causes of action.1 The City Defendants move to 2 dismiss Plaintiff’s fifth claim for negligence only under Federal Rule of Civil Procedure 3 12(b)(6).2 [Doc. # 2.] The County of San Diego moves to dismiss all of Plaintiff’s claims brought 4 against it: intentional infliction of emotional distress; negligence; interference with federal and 5 state constitutional rights; unlawful seizure, arrest, and detention under 42 U.S.C. § 1983; 6 deliberate indifference to medical needs under 42 U.S.C. § 1983; violation of 42 U.S.C. § 1983 7 under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978); and 8 violation of the Bane Act. [Id.] 9 II. 10 LEGAL STANDARD The court must dismiss a cause of action for failure to state a claim upon which relief can 11 be granted. FED. R. CIV. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal 12 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must 13 accept all allegations of material fact as true and construe them in light most favorable to the 14 nonmoving party. Cedars-Sanai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 15 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. Bell 16 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not “necessarily 17 assume the truth of legal conclusions merely because they are cast in the form of factual 18 allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) 19 (internal quotation marks omitted). The court does not need to accept any legal conclusions as 20 true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 21 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed 22 factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ 23 1 The complaint sets forth the following causes of action: (1) false arrest and imprisonment; (2) battery; (3) assault and battery; (4) intentional infliction of emotional distress 25 (“IIED”); (5) negligence; (6) interference with federal and state constitutional rights; (7) unlawful seizure, arrest, and detention under 42 U.S.C. § 1983; (8) excessive force under 42 26 U.S.C. § 1983; (9) deliberate indifference to medical needs under 42 U.S.C. §1983; (10) violation of 42 U.S.C. § 1983 under Monell v. Department of Social Services of the City of New 27 York, 436 U.S. 658 (1978); and (11) violation of the Bane Act, CAL. CIV. CODE §§ 52, 52.1. 24 28 2 The City Defendants do not challenge the Complaint as to Counts 1-4, 6-8, 10, or 11. 3 13cv0322 1 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 2 action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Instead, the allegations 3 in the complaint “must be enough to raise a right to relief above the speculative level.” Id. Thus, 4 “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as 5 true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing 6 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 7 content that allows the court to draw the reasonable inference that the defendant is liable for the 8 misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but 9 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint 10 may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient 11 facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th 12 Cir. 1984). 13 III. DISCUSSION 14 A. 15 Plaintiff alleges claims for IIED and negligence against the City of San Diego and the Municipal Liability at Common Law 16 County of San Diego.3 (Compl. ¶¶ 47-59.) In California, “[a] public entity is not liable for an 17 injury, whether such injury arises out of an act or omission of the public entity or a public 18 employee or any other person.” CAL. GOV'T CODE § 815. However, “[a] public entity is liable for 19 injury proximately caused by an act or omission of an employee of the public entity within the 20 scope of his employment if the act or omission would, apart from this section, have given rise to a 21 cause of action against that employee or his personal representative.” CAL. GOV'T CODE § 815.2. 22 Thus, under California law, for a municipality to be liable, the statute claimed to establish a duty 23 giving rise to the cause of action must be identified. Searcy v. Hemet Unified Sch. Dist., 177 Cal. 24 App. 3d 792, 802 (1986). 25 Plaintiff alleges that “Defendant City of San Diego . . . . is a municipal entity liable in 26 respondeat superior for the acts and omissions of its employees in the San Diego Police 27 28 3 The City seeks dismissal of Plaintiff’s negligence claim only. 4 13cv0322 1 Department,” and that “Defendant County of San Diego . . . . is a municipal entity liable in 2 respondeat superior for the acts and omissions of its employees in the San Diego County 3 Sheriff’s Office and at Las Colinas Detention Facility, and for the negligent hiring, training, 4 supervision, discipline, and/or retention of its employees.” (Compl. ¶¶ 7-8.) 5 But Plaintiff fails to identify the statute providing for municipal liability for her IIED and 6 negligence claims under this theory. (Compl. ¶¶ 7-8, 47-52.) Municipal liability under a 7 respondeat superior theory is statutory in California, and Plaintiff has failed to identify a statute 8 as required under California law. See CAL. GOV'T CODE § 815; Searcy, 177 Cal. App. 3d at 802. 9 Thus, Plaintiff’s fourth and fifth causes of action do not state claims upon which relief can be 10 granted. Cal. FED R. CIV. P. 12(B)(6). 11 Accordingly, the Court will dismiss Plaintiff’s claim for IIED as to the County of San 12 Diego and for negligence as to the County of San Diego and the City of San Diego. 13 B. Civil Rights Violation under the Bane Act 14 Plaintiff’s eleventh cause of action alleges violation of civil rights under the Bane Act. 15 CAL. CIV. CODE § 52.1. In order for Plaintiff to establish a Bane Act violation, she must show that 16 Defendants “interfered with or attempted to interfere with the plaintiff's constitutional rights by 17 the requisite threats, intimidation, or coercion.” Shoyoye v. Cnty. of Los Angeles, 203 Cal. App. 18 4th 947, 956. 19 20 21 22 23 Plaintiff alleges that: [b]ased on the conduct alleged above, and all the foregoing paragraphs, all defendants, and each of them, are liable to Plaintiff for violating her California civil rights enshrined in the Bane Act, in that they interfered by threats, intimidation and coercion with her rights to due process, and to be free from false arrest, imprisonment, assault and battery, interference with and retaliation for exercise of free speech, assembly, and petition, and abuse of process, as guaranteed by Article 1, §§ 1, 2, 7, and 14 of the California Constitution . . . . 24 (Compl. ¶ 94.) Plaintiff fails to identify which of the Defendants’ actions violated these rights 25 with any specificity. (Id.) Instead, she refers back to the factual allegations of the complaint as a 26 whole, presenting a conclusion that constitutes the elements of a Bane Act violation. (Id.) Such 27 “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. 28 5 13cv0322 1 Because Plaintiff does not identify which specific actions of each Defendant violated her rights, 2 she has failed to state a claim upon which relief can be granted and Plaintiff’s eleventh claim for 3 violation of the Bane Act as to the County of San Diego will be dismissed. See FED. R. CIV. P. 4 12(b)(6). 5 C. Respondeat Superior Liability for Federal Claims 6 Plaintiff’s sixth and seventh causes of action allege violations of constitutional rights 7 under 42 U.S.C. § 1983. (Compl. ¶¶ 60-69.) Plaintiff bases these causes of action against the City 8 and County on a theory of respondeat superior. (Compl. ¶¶ 7-8.) Municipalities are not 9 vicariously liable for their employee’s actions on a theory of respondeat superior under 42 U.S.C. 10 § 1983. Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011); see Iqbal, 556 U.S. at 676. Because 11 Plaintiff’s sixth and seventh causes of action are based on a theory of respondeat superior and 12 there is no municipal liability under this theory for 42 U.S.C. § 1983 violations, these claims will 13 be dismissed as to the County of San Diego. The Court will grant leave to amend, but any 14 amendment must contain no reference to a theory of vicarious liability or respondeat superior 15 against the City or County with respect to a violation of 42 U.S.C. § 1983. 16 D. 17 Plaintiff’s tenth cause of action alleges unlawful policies and practices in violation of her Municipal Violation of 42 U.S.C. § 1983 under Monell 18 constitutional rights pursuant to 42 U.S.C. § 1983 under Monell, 436 U.S. at 658. There are three 19 ways in which a plaintiff may present a valid cause of action for violation of 42 U.S.C. § 1983 20 under Monell and its progeny: 1) showing that official policy or longstanding custom caused a 21 deprivation of constitutional rights; 2) showing that an official with final policymaking authority 22 made a decision which caused a deprivation of constitutional rights; or 3) showing that an official 23 with final policymaking authority ratified a subordinate’s decision and the basis for it, thus 24 causing a constitutional deprivation. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) 25 holding modified by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). Whether an official has final 26 policymaking authority is a question of state law. Id. “Liability for improper custom may not be 27 predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient 28 duration, frequency and consistency that the conduct has become a traditional method of carrying 6 13cv0322 1 out policy.” Trevino, 99 F.3d at 918. Plaintiff must further show that the policy was the “moving 2 force” behind the violation of the employee’s rights, in the sense that an appropriate policy could 3 have prevented the violation. See Fuller v. Cnty. of Orange, 276 F. App'x 675, 679-80 (9th Cir. 4 2008) (quoting Gibson v. County of Washoe, 290 F.3d 1175, 1185–86, 1193–94 (9th Cir.2002)). 5 Plaintiff alleges that: 6 the actions of these Defendants were part of a wider pattern and practice that was approved and encouraged by the San Diego Police Department, the San Diego Sheriff’s Department, the CITY OF SAN DIEGO, and the COUNTY OF SAN DIEGO . . . . the pattern and practice of the police department and the Sheriff’s department, and of the individuals with final policymaking authority within them, was such that there was a permanent and settled culture which encouraged both the harassment of, and the use of excessive force against individuals like Plaintiff who were perceived as being part of the “Occupy” movement . . . . 7 8 9 10 11 (Compl. ¶ 91.) She further alleges that: 12 13 14 15 16 [t]he same is true of the individuals with final policymaking authority for the San Diego Sheriff’s Department (all of whom are employees of the COUNTY OF SAN DIEGO) when confronted with the violations of Stephanie’s Eighth Amendment rights committed in the Las Colinas jail. Rather than take corrective action, said individuals ratified the illegal conduct. The reason for this is that the denial of medical care, particularly to individuals perceived to be associated with the “Occupy” protest, was a pattern and practice at the jail and was approved of by individuals with final policymaking authority within the San Diego Sheriff’s Department. 17 18 (Compl. ¶ 92.) Though Plaintiff alleges a pattern of harassment and the use of force against those 19 perceived as being part of the Occupy movement, she fails to allege even one incident of such 20 behavior toward anyone besides herself. (Compl. ¶ 91.) Likewise, she alleges a pattern of denying 21 medical care in the jail without pointing to more than one such event – her own. (Compl. ¶ 92). 22 Plaintiff alleges that someone with final policymaking authority ratified the decision to deny her 23 medical care, but she does not identify either this person or the facts which serve as the basis for 24 the legal conclusion that he or she possessed final policymaking authority. See Trevino, 99 F.3d 25 at 918. (Id.) Because the assertion that an official possesses final policymaking authority is a legal 26 conclusion, the Court will not assume it true for the basis of this motion. See id.; Iqbal, 556 U.S. 27 at 678. 28 Plaintiff’s claims are devoid of factual support and are little more than formulaic recitation 7 13cv0322 1 of the elements of a cause of action. As such, they do not meet the pleading standard of Twombly, 2 550 U.S. at 555, and these claims must be dismissed. See FED. R. CIV. P. 12(b)(6). 3 E. Medical Needs 4 5 Municipal Violation of 42 U.S.C. § 1983 through Deliberate Indifference to Plaintiff’s ninth cause of action alleges deliberate indifference to medical needs on the part 6 of Doe Defendant “officers,” who by denying Plaintiff her anti-rejection and heart medication 7 ostensibly violated 42 U.S.C. § 1983. (Compl. ¶¶ 76-79.) Plaintiff identifies Doe Defendants 36 8 through 45 inclusive as San Diego County Sheriff’s deputies and Doe Defendants 45 through 50 9 inclusive as other San Diego County officials. (Compl. ¶¶ 14-15.) But nowhere does she allege 10 that these were the Doe Defendant officers she told about her need for medication. (Compl. ¶ 27.) 11 And nowhere does she allege that the officers she told of her medical need were under the employ 12 of the County of San Diego. (Compl. ¶¶ 27, 76-79) The identity of these officers, and their 13 employment, is left ambiguous. 14 The Court may not speculate as to the meaning of Plaintiff’s ambiguous pleading. See 15 Twombly, 550 U.S. at 555. Because of a lack of definiteness with respect to the employment of 16 the officers whom Plaintiff told of her medical need, Plaintiff’s sixth cause of action fails to state 17 a claim rising above the speculative level as required under Twombly. Id. Therefore, the Court 18 will dismiss Plaintiff’s ninth claim for violation of 42 U.S.C. § 1983 based upon indifference to 19 medical needs as to the County of San Diego. See FED. R. CIV. P. 12(b)(6). 20 F. Leave to Amend 21 Federal Rule of Civil Procedure 15(a) provides that after a responsive pleading has been 22 served, a party may amend its complaint only with the opposing party’s written consent or the 23 court’s leave. FED. R. CIV. P. 15(A). “The court should freely give leave when justice so requires” 24 and apply this policy with “extreme liberality.” Id.; DCD Programs, Ltd. v. Leighton, 833 F.2d 25 183, 186 (9th Cir.1987). However, leave to amend is not to be granted automatically. Zivkovic v. 26 S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Jackson v. Bank of Haw., 902 27 F.2d 1385, 1387 (9th Cir. 1990)). Granting leave to amend rests in the sound discretion of the 28 district court. Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir. 1996). 8 13cv0322 1 The Court considers five factors in assessing a motion for leave to amend: (1) bad faith, 2 (2) undue delay, (3) prejudice to the opposing party, (4) futility of the amendment, and (5) 3 whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 4 1077 (9th Cir. 2004). Of these factors, prejudice to the opposing party carries the greatest weight. 5 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). However, absent 6 prejudice, a strong showing of the other factors may support denying leave to amend. See id.; 7 Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (holding that futility supports a 8 court’s decision to deny a motion for leave to amend). 9 The Court will grant Plaintiff leave to amend so that she may expand upon and properly 10 plead her theories of liability. Any amendment must make no reference to respondeat superior or 11 vicarious liability for violation of 42 U.S.C. § 1983. 12 IV. CONCLUSION & ORDER 13 For the reasons set forth above, the Court GRANTS Defendant City of San Diego’s and 14 Defendant County of San Diego’s motions to dismiss. 15 Specifically, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s fifth claim as 16 to the City of San Diego. 17 The Court DISMISSES WITHOUT PREJUDICE all claims against the County of San 18 Diego, namely Plaintiff’s fourth, fifth, sixth, seventh, ninth, tenth, and eleventh causes of action. 19 If Plaintiff intends to file a Second Amended Complaint in conformity with this Order, 20 then she must do so by July 19, 2013. 21 IT IS SO ORDERED. 22 DATED: July 8, 2013 23 24 M. James Lorenz United States District Court Judge 25 COPY TO: 26 HON. NITA L. STORMES UNITED STATES MAGISTRATE JUDGE 27 28 ALL PARTIES/COUNSEL 9 13cv0322
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