Lewis et al v. San Diego, County of et al, No. 3:2013cv02818 - Document 12 (S.D. Cal. 2014)
Court Description: ORDER granting 3 Defendant's Motion to Dismiss with Leave to Amend. If Plaintiffs decide to file an amended complaint, they must do so by July 28, 2014. Signed by Judge M. James Lorenz on 7/15/2014. (sjt)
Download PDF
<![CDATA[
Lewis et al v. San Diego, County of et al Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL LEWIS, LAUREN TAYLOR, ) and minors C.L. and B.L., by and through ) ) 12 their Guardian ad Litem, ) Plaintiffs, ) 13 ) ) 14 v. ) ) 15 COUNTY OF SAN DIEGO; CITY OF CORONADO; CORONADO POLICE ) ) 16 OFFICER PATRICK O’MALLEY; CORONADO POLICE OFFICE ) ) 17 ROBERT CLINE; COUNTY AGENT IAN BAXTER; COUNTY AGENT N. ) ) 18 QUINTEROS; COUNTY AGENT SUPERVISOR BENITA JEMISON; ) ) 19 COUNTY AGENT ABIGAIL JOSEPH; COUNTY AGENT SUPERVISOR ) 20 ANTONIA TORRES; COUNTY AGENT ) BROOKE GUILD; COUNTY AGENT ) 21 SUPERVISOR ALFREDO GUARDADO; ) and DOES 1 through 50, ) 22 ) Defendants. ) 23 ) 24 Case No. 13-cv-2818-L (JMA) ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND [doc. #3] This action arises from Plaintiffs’ federal claims under 42 U.S.C. § 1983 and state law 25 claims against Defendants. City of Coronado and Coronado Police Officers Patrick O’Malley 26 (“O’Malley”) and Robert Cline (“Cline”) now move to dismiss the claims under Federal Rule of 27 Civil Procedure 12(b)(6). 28 The Court found this motion suitable for determination on the papers submitted and 13cv2818 Dockets.Justia.com 1 without oral argument. See CIV. L.R. 7.1(d.1). For the following reasons, the Court GRANTS 2 Defendant’s motion to dismiss with leave to amend. 3 I. BACKGROUND 4 Plaintiffs Michael Lewis (“Lewis”) and Lauren Taylor (“Taylor”) are parents of two 5 boys: two-year-old B.L. and four-year-old C.L. (Compl. ¶ 2.) They are all residents of Coronado, 6 California. (Id.) Lewis served in the Gulf War from 1991 to 1994 and was exposed to unknown 7 chemicals. (Id. ¶ 4.) Since then, Lewis suffered from chronic migraines. (Id.) Lewis legally used 8 marijuana to release the pressure of the migraines upon the advice of a physician. (Id.) Plaintiffs 9 allege that although Lewis had marijuana at home, the children were not exposed to marijuana or 10 marijuana smoke. (Id.) 11 According to the Complaint, on August 5, 2011, police officers with the City of Coronado 12 received an anonymous “tip” that the Lewis family was smoking marijuana around children. 13 (Compl. ¶ 5.) That same day, officers went to the Lewis family residence and Lewis allowed 14 them to enter and take photographs. (Id. ¶ 6.) Taylor and the children were not home at the time. 15 (Id.) Although the officers found marijuana in the home, Lewis presented his medical marijuana 16 recommendation to them. (Id. ¶ 7.) The officers then left and wrote a report, in which they 17 identified marijuana as the only purported “hazard” in the residence. (Id.) Neither Lewis nor 18 Taylor were ever criminally prosecuted for the possession and/or use of the marijuana. (Id.) 19 On August 8, 2011, County Agents Ian Baxter (“Baxter”) and N. Quinteros (“Quinteros”) 20 were working in the course and scope of their employment for the County of San Diego, 21 specifically with the Health & Human Services Agency. (Compl. ¶ 8.) They were accompanied 22 by Coronado Police Officers O’Malley and Cline who were working within the course and scope 23 of their employment with the City of Coronado. (Id.) After consulting their supervisors and 24 O’Malley and Cline, and obtaining their advice and agreement, Baxter and Quinteros seized C.L. 25 and B.L. from their home. (Id. ¶ 9.) Plaintiffs contend that Defendants deposited the children at 26 the Polinsky Center – an emergency shelter for allegedly abused and neglected children in San 27 Diego County. (Id.) The only allegations against Lewis and Taylor were essentially that Lewis 28 legally used marijuana and police found marijuana in the home. (Id. ¶ 10.) Plaintiffs further 13cv2818 2 1 allege that County agents and City agents seized C.L. and B.L. without a warrant based on 2 allegations of “general neglect.” (Id. ¶ 11.) Specifically, there was no reasonable evidence to 3 suggest that either child was in immediate danger of suffering severe bodily injury or death at 4 the hands of their parents, which would have been necessary to obtain a protective custody 5 warrant. (Id.) Defendants allegedly failed to conduct any independent investigation prior to 6 seizing the children. (Id. ¶ 12.) 7 On the same day the children were seized, Lewis and Taylor expressed their willingness 8 to have their home checked for safety, submitted photographs showing a clean kitchen, got a 9 lockbox for medication and had a padlock where the marijuana was grown. (Compl. ¶ 14.) They 10 presented this evidence to Baxter. (Id.) Despite the evidence, Baxter and Quinteros continued to 11 have C.L. and B.L. detained. (Id.) Their supervisors Jemison and Guardado, after a detailed 12 review of the matter, ratified their conduct. (Id.) 13 Baxter filed a petition with the juvenile court in the County of San Diego (“County”) and 14 on behalf of the County. The County and Baxter asserted one count against Lewis and Taylor. 15 (Compl. ¶ 20.) Baxter allegedly misled the court by making false statements. (Id. ¶ 21.) At some 16 point, County Agent Joseph assumed Baxter’s role as the lead agent on the case while County 17 Agent Torres assumed Jemison’s supervisory role. (Id. ¶ 22.) County Agent Guild is alleged to 18 have acted in concert with Joseph. (Id.) Joseph allegedly continued to lie to the juvenile court 19 and acted in concert with her supervisor Torres in providing knowingly false information. (Id. ¶¶ 20 23, 24.) Joseph and Torres disregarded the exculpatory evidence Lewis provided and continued 21 to detain the children in County facilities. (Id. ¶¶ 25, 27.) On February 3, 2012, the County and 22 Joseph, with the approval of Torres, filed amended petitions where they added a second count. 23 (Id. ¶ 28.) On February 6, 2012, the court, based on the false information provided by County 24 agents, declared C.L. and B.L. dependants of the juvenile court. (Id. ¶ 30.) On August 2, 2012, 25 the Court of Appeal reversed the juvenile court’s order. (Id. ¶ 31.) The children remained out of 26 their home until the family was reunited on August 7, 2012. (Id.) 27 On July 31, 2013, Plaintiffs commenced an action in the Superior Court of the State of 28 California, San Diego, against Defendants County of San Diego, City of Coronado, O’Malley, 13cv2818 3 1 Cline, Baxter, Quinteros, Jemison, Joseph, Torres, Guild, and Guardado. The Complaint asserts 2 seven causes of action: (1) deprivation of the 14th Amendment right to familial relations under 3 42 U.S.C. § 1983; (2) unconstitutional official policy, practice, or custom under 42 U.S.C. § 4 1983; (3) battery; (4) false imprisonment; (5) negligence; (6) Intentional Infliction of Emotional 5 Distress; and (7) violation of the Bane Act, CAL. CIV. CODE § 52.1. 6 On November 27, 2013, Defendants County of San Diego, Baxter, Quinteros, Jemison, 7 Joseph, Torres, Guild, and Guardado removed this action to federal court. On December 6, 2013, 8 Defendants City of Coronado, O’Malley, and Cline moved to dismiss the Complaint, arguing 9 that the allegations are impermissibly vague. On January 3, 2014, Plaintiffs filed an opposition 10 to the motion to dismiss. On January 14, 2014, Defendants City of Coronado, O’Malley, and 11 Cline filed a reply in further support of their motion to dismiss. 12 II. LEGAL STANDARD 13 The court must dismiss a cause of action for failure to state a claim upon which relief can 14 be granted. FED. R. CIV. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal 15 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court 16 must accept all allegations of material fact as true and construe them in light most favorable to 17 the nonmoving party. Cedars-Sanai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 18 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not “necessarily 20 assume the truth of legal conclusions merely because they are cast in the form of factual 21 allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) 22 (internal quotation marks omitted). In fact, the court does not need to accept any legal 23 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 24 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed 25 factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ 26 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 27 of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Instead, the 28 allegations in the complaint “must be enough to raise a right to relief above the speculative 13cv2818 4 1 level.” Id. Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual 2 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 3 at 678 (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff 4 pleads factual content that allows the court to draw the reasonable inference that the defendant is 5 liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability 6 requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 7 Id. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory 8 or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 9 F.2d 530, 534 (9th Cir. 1984). 10 III. DISCUSSION 11 A. 12 13 Plaintiffs’ Federal Claims under 42 U.S.C. § 1983 1. Coronado Police Officers O’Malley and Cline Plaintiffs’ federal claim against O’Malley and Cline arises under 42 U.S.C. § 1983. To 14 prevail on a Section 1983 claim, a plaintiff must demonstrate that state action deprived him of 15 federally-secured constitutional rights. See Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 16 1988). The parties do not dispute that O’Malley and Cline acted under color of state law. The 17 issue is whether their actions violated Plaintiffs’ due process right to familial relations under the 18 Fourteenth Amendment. 19 The Supreme Court has long recognized, as a component of “substantive” due process, 20 that parents have a liberty interest in familial relations, which includes the right to “establish a 21 home and bring up children” and “to control the education of their own.” Meyer v. Nebraska, 22 262 U.S. 390, 399 (1923); see also Troxel v. Granville, 530 U.S. 57, 65 (2000) (noting that the 23 right to familial relations is the “oldest of the fundamental liberty interests recognized”). Thus, 24 parents have the right not to “be separated from their children without due process of law, except 25 in emergencies.” Mabe v. San Bernardino County, 237 F.3d 1101, 1107 (9th Cir. 2001). “Under 26 certain circumstances, these rights must bow to other countervailing interests and rights, such as 27 the basic independent life and liberty rights of the child and of the State acting as parens patriae; 28 and on occasion, this accommodation may occur without a pre-deprivation hearing.” Mueller v. 13cv2818 5 1 Auker, 700 F.3d 1180, 1186 (9th Cir. 2012). 2 A government official may intrude on a parent's custody of his child without obtaining a 3 warrant if the official has information “at the time of the seizure that establishes ‘reasonable 4 cause to believe that the child is in imminent danger of serious bodily injury and that the scope 5 of the intrusion is reasonably necessary to avert that specific injury.’” Mabe, 237 F.3d at 1106 6 (citing Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir.1999)). The court uses an objective 7 standard to determine whether information provided an official with reasonable cause to believe 8 exigent circumstances exist. See Wallis, 202 F.3d at 1139 n. 9. No fixed formula determines 9 exigency, and courts consider the totality of the circumstances. See Doe v. Kearny, 329 F.3d 10 1286, 1295 (11th Cir.2003). Relevant factors that can weigh in favor of exigency include the 11 following: (1) the parents’ credibility; and (2) the age of the child. See Ram v. Rubin, 118 F.3d 12 1306, 1309 (9th Cir.1997); see also Dietz v. Damas, 932 F.Supp. 431, 447 (E.D.N.Y.1996). 13 Here, the Complaint alleges that O’Malley and Cline accompanied County Agents Baxter 14 and Quinteros to Plaintiffs’ home on August 8, 2011. (Compl. ¶ 8.) Baxter and Quinteros, after 15 consulting with O’Malley and Cline, seized the children. (Id. ¶ 9.) Thus, it was Baxter and 16 Quinteros who removed the children from their parents. There are no specific allegations that 17 O’Malley and Cline personally seized the children, placed the children at the Polinsky Center, or 18 participated in any of the court proceedings. 19 In their Opposition, Plaintiffs rely on a long line of civil cases and assert that police 20 officers have a duty to intervene when they witness government officials violating the 21 constitutional rights of a suspect or other citizen. (Opp’n at 8: 8-17.) Therefore, Plaintiffs argue 22 that O'Malley and Cline had an obligation to intercede and stop the seizure when County agents 23 consulted with them. (Id. at 9.) The Court is unconvinced by Plaintiffs’ argument. First, 24 Plaintiffs have misstated the rule. “Police officers have a duty to intercede when their fellow 25 officers violate the constitutional rights of a suspect or other citizen.” United States v. Koon, 34 26 F.3d 1416, 1447 n. 25 (9th Cir. 1994) (emphasis added). More importantly, these cases are 27 inapposite here because, unlike this case, they all involve the use of excessive force by police 28 officers and the violation of the plaintiff’s Fourth Amendment right to be free from unreasonable 13cv2818 6 1 force. See Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) (holding that a police officer may not 2 ignore his duty and fail to stop other officers who punish a third person in his presence or 3 otherwise within his knowledge); see also Byrd v. Clark, 783 F.2d 1002 (11th Cir. 1986) 4 (finding the police officer directly liable under Section 1983 on the ground that he failed to 5 intervene in an unprovoked beating at the hands of his fellow officer); Putman v. Gerloff, 639 6 F.2d 415 (finding deputy’s failure to intervene in beating administered by sheriff sufficient to 7 subject him to liability). Finally, no facts in the Complaint demonstrate that O’Malley and Cline 8 knew or should have known plaintiffs’ constitutional rights were being violated. There are no 9 allegations that O’Malley and Cline participated in or knew about the prior investigation of the 10 Lewis family on August 5, 2011.1 Additionally, the Complaint contains no factual allegations 11 indicating that O’Malley and Cline knew or should have known the children were not in 12 imminent danger. Therefore, Plaintiffs fail to state a plausible claim against O’Malley and Cline 13 for violation of the Fourteenth Amendment right to familial relations. 14 In light of the foregoing, Defendants’ motion on this basis is GRANTED WITH 15 LEAVE TO AMEND. 2. 16 17 City of Coronado Plaintiffs contend that the City of Coronado (“City”) has violated their constitutional 18 rights by enforcing unlawful policies, including but not limited to the policies of removing 19 children from their family without exigent circumstances, communicating false information to 20 the family court, and holding the children after any alleged basis for detention is negated. 21 (Compl. ¶ 55.) Plaintiffs further allege that the City is liable under Section 1983 by 22 implementing a policy of inadequate training. (Id.) 23 The Supreme Court held that municipal entities are subject to Section 1983 liability, but 24 not on the basis of respondeat superior. Monell v. Dep’t of Soc. Servs. of City of New York, 436 25 26 1 The Complaint alleges that police officers investigated the Lewis family on August 5, 27 2011, and that Lewis presented his medical marijuana recommendation to the officers (emphasis added). However, the Complaint does not allege that O’Malley and Cline were among the 28 above-mentioned police officers. 13cv2818 7 1 U.S. 658, 690-91 (1978). Monell established that a municipality is subject to liability under 2 Section 1983 only when the violation of the plaintiff’s federally protected right can be 3 attributable to the enforcement of a municipal policy, practice, or decision of a final municipal 4 policy maker. 436 U.S. at 694. A Monell claim, whether for a municipal policy or for failure to 5 train, generally cannot be premised on a single unconstitutional incident. See Trevino v. Gates, 6 99 F.3d 911, 918 (9th Cir. 1996) (“Liability for improper custom may not be predicated on 7 isolated or sporadic incidents; it must be founded upon practices of sufficient duration, 8 frequency and consistency that the conduct has become a traditional method of carrying out 9 policy”); City of Canton v. Harris, 489 U.S. 378, 390-91 (1989) (“That a particular officer may 10 be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's 11 shortcomings may have resulted from factors other than a faulty training program”); Lee v. City 12 of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (noting that the failure to train must result 13 from a conscious or deliberate choice to follow a course of action made from among various 14 alternatives). To impose municipal liability based on deliberately indifferent training, the 15 plaintiff has to show that deliberate indifference was the “moving force” behind the violation of 16 his federally protected right. City of Canton v. Harris, 489 U.S. 378, 389 (1989). 17 Plaintiffs’ claim against the City contains mere conclusory statements and a simple 18 formulaic recitation of the elements of a cause of action. See Twombly, 550 U.S. at 555. 19 Although plaintiffs assert a pattern of removing and detaining children without legal basis, they 20 base the allegation only on an isolated event of their own and fail to show a “persistent and 21 widespread” policy. See Monell, 436 U.S. at 691. Similarly, Plaintiffs’ allegation of inadequate 22 training is devoid of factual support. Furthermore, the allegations of communicating false 23 information to the family court and holding the children after the parents presented clear 24 evidence are not against the City’s police officers.2 Therefore, no facts in the Complaint show 25 2 The Complaint alleges that County Agents made false statements to the family court and continued to detain the children despite the exculpatory evidence Lewis provided. The 27 Complaint contains no factual allegations that Coronado police officers were involved in such conduct. 28 26 13cv2818 8 1 that the City has enforced such policies. 2 In light of the foregoing, Defendants’ motion on this basis is GRANTED WITH 3 LEAVE TO AMEND. 4 5 6 B. Plaintiff’s State Law Claims 1. Plaintiffs Fail to Plead Compliance with the California Tort Claims Act Plaintiffs allege various state law claims. Although the court may exercise supplemental 7 jurisdiction over state law claims, a plaintiff must first have a cognizable claim for relief under 8 federal law. See 28 U.S.C. § 1367. Moreover, if a plaintiff pursues state law claims, he must 9 clearly identify each claim and demonstrate compliance with the California Tort Claims Act 10 (“CTCA”). Under the CTCA, a plaintiff may not maintain an action for damages against a public 11 employee unless he has presented a written claim to the state Victim Compensation and 12 Government Claims Board within six months of accrual of the action. CAL. GOV’T CODE §§ 910, 13 911.2, 912.4, 912.6, 945.4; Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th 14 Cir.1995). A plaintiff may file a written application for leave to file a late claim up to one year 15 after the cause of action accrues. CAL. GOV’T CODE § 911.4. The purpose of the CTCA is “to 16 provide the public entity sufficient information to enable it to adequately investigate claims and 17 to settle them, if appropriate, without the expense of litigation.” City of San Jose v. Superior 18 Court, 12 Cal. 3d 447, 455 (1974). Thus, in pleading a state law claim, a plaintiff must allege 19 facts demonstrating that he has complied with the CTCA’s claim presentation requirement. State 20 of California v. Superior Court (Bodde), 32 Cal. 4th 1234, 1243 (2004). Failure to demonstrate 21 compliance constitutes a failure to state a cause of action. Id. 22 Plaintiffs have not pleaded their compliance with the CTCA in the Complaint. The only 23 allegations concerning the Coronado police officers occurred on August 8, 2011, thus the cause 24 of action against the City and its police officers accrued on August 8, 2011. A claim for damages 25 against the City and its officers should have been filed no later than February 8, 2012 and a late 26 claim application should have been filed no later than August 8, 2012. 27 In light of the foregoing, Defendants’ motion on this basis is GRANTED WITH 28 LEAVE TO AMEND. 13cv2818 9 1 2 2. Plaintiffs Fail to Sufficiently Plead the State Law Claims The state law causes of action against the City and its officers would nevertheless be 3 dismissed because Plaintiffs fail to state a plausible claim upon which relief can be granted. See 4 FED. R. CIV. P. 12(b)(6). Plaintiffs allege the following state law claims: (1) battery; (2) false 5 imprisonment; (3) negligence; (4) Intentional Infliction of Emotional Distress; and (5) violation 6 of the Bane Act, CAL. CIV. CODE § 52.1. However, these state law claims are inadequately 7 pleaded: they contain mere conclusory statements and a simple formulaic recitation of the 8 elements of a cause of action. See Twombly, 550 U.S. at 555. Plaintiffs vaguely lump all 9 defendants together without providing any factual allegations that specify separate acts of 10 O’Malley and Cline that would subject them to liability. Because the Complaint does not state 11 plausible state law causes of action against the Coronado police officers, the City cannot be held 12 vicariously liable. 13 In light of the foregoing, Defendants’ motion on this basis is GRANTED WITH 14 LEAVE TO AMEND. 15 IV. CONCLUSION & ORDER 16 In light of the foregoing, the Court GRANTS Defendant’s motion to dismiss with 17 LEAVE TO AMEND. If Plaintiffs decide to file an amended complaint, they must do so by 18 July 28, 2014. 19 IT IS SO ORDERED. 20 DATED: July 15, 2014 21 22 M. James Lorenz United States District Court Judge 23 COPY TO: 24 HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE 25 26 ALL PARTIES/COUNSEL 27 28 13cv2818 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
