Ayala et al v. County of Imperial et al, No. 3:2015cv00397 - Document 16 (S.D. Cal. 2016)
Court Description: ORDER granting Motions to Dimiss ( 6 , 7 ), ORDER TO SHOW CAUSE Re: Failure to Serve. Plaintiffs are ORDERED TO SHOW CAUSE why the City of Calexico and the federal Defendants should not be dismissed for failure to timely serve them with process. Plai ntiffs may do so by either filing proofs of service showing that all these Defendants have already been served with process, or by filing a memorandum of points and authorities not to exceed five pages, showing good cause for the failure to serve. Ei ther way, they must show cause by March 22, 2016. Alternatively, they may dismiss all claims against these Defendants. Because the Complaint fails to plead any causes of action, it is DISMISSED WITHOUT PREJUDICE. No later than April 11, 2016, Plaintiffs must file an amended complaint correcting all the defects this order has identified. Signed by Judge Larry Alan Burns on 3/8/16. (All non-registered users served via U.S. Mail Service)(kas)
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Ayala et al v. County of Imperial et al Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VIRGIE AYALA, et al., CASE NO. 15cv397-LAB (NLS) Plaintiffs, 12 ORDER GRANTING MOTIONS TO DISMISS; AND vs. 13 14 ORDER TO SHOW CAUSE RE: FAILURE TO SERVE COUNTY OF IMPERIAL, et al., Defendants. 15 16 The claims in this case arise form the fatal shooting of a suspect, Mark Anthony 17 Ayala. The complaint identifies 42 U.S.C. § 1983 as the basis for all claims. (Compl., ¶ 1.) 18 Plaintiffs are the mother, widow, and children, respectively, of Ayala, and they are 19 represented by counsel. This case is related to case 15cv818, Lerma-Mayoral v. City of El 20 Centro, which arises from the same incident. The named Defendants are all entities, 21 including municipalities; municipal organizations; and three federal agencies, the U.S. Drug 22 Enforcement Agency, Border Patrol, and Immigration and Customs Enforcement. The 23 Complaint also names 30 Doe Defendants, who were individual law enforcement officers 24 (see Compl., ¶¶ 7, 10–12), but other than identifying their respective employers, the 25 Complaint does not describe them or distinguish among them. 26 The City of Imperial filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss, and also joined 27 in a motion to dismiss brought by the City of Brawley, and the City of El Centro. No other 28 Defendant has appeared. -1- 15cv397 Dockets.Justia.com 1 Allegations 2 According to the Complaint, the fatal shooting occurred on January 31, 2014 in El 3 Centro, California, while officers were executing a misdemeanor warrant on Ayala. 4 (Compl.¶¶ 10–12, 24, 32.) The individual Doe Defendants are alleged to have shot Ayala 5 when he was unarmed. (Compl., ¶¶ 10–12, 25.) The Complaint further alleges that Ayala 6 did not have with him anything that resembled a weapon, and concludes that he did not 7 present a threat to the Defendants. Nevertheless, for reasons the Complaint does not 8 provide, and under circumstances the Complaint does not allege, Defendants shot him 37 9 times, killing him. They allegedly continued to shoot even after he was dead. (Id., ¶ 37.) 10 Then, the Complaint says, when Ayala was already dead, they handcuffed his body. Later, 11 the Complaint alleges, they attempted to coerce a witness into signing a false declaration 12 that the night before, Ayala had brandished a weapon at an El Centro police officer. (Id., 13 ¶¶ 27–31, 37.) The Complaint does not provide much detail on what happened, why, or 14 how. 15 The complaint raises claims for violation of Ayala’s constitutional rights, and also 16 survivors’ claims for wrongful death. The entities are alleged, in very general terms, to have 17 failed to train their officers adequately, to have ratified their officers’ unlawful killing of Ayala, 18 and also to have maintained policies that led to Ayala’s death. Besides the § 1983 claims 19 against the individual Doe Defendants and the claims against municipal entities under Monell 20 v. Dept. of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978), the Complaint brings tort 21 claims against all Defendants. 22 Discussion 23 A Rule12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. 24 Block, 250 F.3d 729, 732 (9th Cir. 2001). Under Fed. R. Civ. P. 8(a)(2), only “a short and 25 plain statement of the claim showing that the pleader is entitled to relief,” is required, in order 26 to “give the defendant fair notice of what the . . . claim is and the grounds upon which it 27 rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554–55 (2007). “Factual allegations 28 must be enough to raise a right to relief above the speculative level . . . .” Id. at 555. “[S]ome -2- 15cv397 1 threshold of plausibility must be crossed at the outset” before a case is permitted to proceed. 2 Id. at 558 (citation omitted). The well-pleaded facts must do more than permit the Court to 3 infer “the mere possibility of conduct”; they must show that the pleader is entitled to relief. 4 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 5 When determining whether a complaint states a claim, the Court accepts all 6 allegations of material fact in the complaint as true and construes them in the light most 7 favorable to the non-moving party. Cedars–Sinai Medical Center v. National League of 8 Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007) (citation omitted). But the Court is 9 “not required to accept as true conclusory allegations which are contradicted by documents 10 referred to in the complaint,” and does “not . . . necessarily assume the truth of legal 11 conclusions merely because they are cast in the form of factual allegations.” Warren v. Fox 12 Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citations and quotation marks 13 omitted). 14 The Court must also confirm its own jurisdiction, sua sponte if necessary. See 15 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc). 16 Discussion 17 The County of Imperial’s motion (Docket no. 6) correctly points out that the Complaint 18 falls short of the pleading standard set forth in Twombly and Iqbal and their progeny. Its 19 factual allegations are sparse, and it relies heavily on legal conclusions. The Complaint 20 never describes the incident that led to Ayala’s death. While it raises the possibility that the 21 officers did something wrong, the facts pled do not plausibly show what they did and why 22 they are liable. Some fatal shootings of suspects violate constitutional rights, while others 23 do not. See, e.g., Jensen v. Burnsides, 356 Fed. Appx. 928 (9th Cir. 2009) (holding that 24 officer’s fatal shooting of a suspect was objectively reasonable, and therefore did not violate 25 constitutional rights); Lewis v. County of Riverside, 260 Fed. Appx. 8 (9th Cir. 2007) (affirming 26 defense verdict in favor of officer who fatally shot a suspect); Harris v. Roderick, 126 F.3d 27 1189, 1204 (9th Cir.1997) (holding that officers’ killing of an armed suspect violated his 28 constitutional rights). The inquiry is fact-intensive. George v. Morris, 736 F.3d 829, 837–38 -3- 15cv397 1 (9th Cir. 2013). On the basis of the sparse facts alleged, it is impossible to even guess which 2 one this is. The Complaint also fails to plead adequate facts to support any state law claims. 3 Plaintiffs take pains to allege that Ayala was shot 37 times, that his lifeless body was 4 then handcuffed, and that officers tried to get a witness to say Ayala had brandished a 5 weapon the night before. But these facts, if true, do not establish a constitutional violation. 6 The real question is whether police were justified in firing shots at Ayala while he was living. 7 Ayala’s brandishing a weapon the previous day would not justify shooting him. And shooting 8 or handcuffing his lifeless body, even if offensive, does not amount to a constitutional 9 violation. See Cole v. Oravec, 2014 WL 2918314, at *7–*8 (D. Mont., June 26, 2014) (citing 10 Guyton v. Phillips, 606 f.2d 248 (9th Cir. 1979)) (“The Ninth Circuit in Guyton clearly 11 concluded that the Civil Rights Act does not provide a cause of action to a decedent for 12 alleged violation of the decedent's civil rights that occurred after the decedent's death.”) And 13 attempting to cover up the details of Ayala’s killing, if that is what Defendants did, would not 14 violate his constitutional rights. See generally id. The Complaint identifies no state law 15 creating a cause of action for any of these acts or omissions. 16 The Complaint also pleads no facts to show what the governmental agencies did or 17 failed to do that would result in Monell liability in this case; all allegations are bare 18 conclusions. In addition, because the Complaint never says what the officers did, it is 19 impossible to know how the government entities’ training and policies might have led to any 20 constitutional violations. See Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (municipal 21 liability depends on the finding of a constitutional violation by individual officers). 22 The County of Imperial’s motion also correctly points out that the claims as pled are 23 too broad. As a municipality, the County can only be liable under a Monell theory; it cannot 24 be vicariously liable for its officers’ or employees’ wrongdoing under § 1983. In addition, 25 individuals acting in their official capacities cannot be liable under § 1983, see Will v. 26 Michigan Dept. of State Police, 491 U.S. 58, 71 (1989), and the Complaint does not specify 27 in what capacity the individual Defendants are sued. 28 /// -4- 15cv397 1 The second motion to dismiss (Docket no. 7) raises essentially the same arguments 2 but is more comprehensive. Significantly, it also points out that Plaintiffs have not shown 3 they are successors-in-interest to Ayala. This is relevant to their claims for violations of 4 Ayala’s rights, and for torts against Ayala, rather than to their own wrongful death claims as 5 survivors. Bearing in mind their relationship to him, one or more of them are probably his 6 successors-in-interest. See Estate of Cornejo ex rel. Solis v. City of Los Angeles, 618 Fed. 7 Appx. 917, 919 (9th Cir. 2015). But because their status as successors-in-interest affects 8 their standing to sue and is thus jurisdictional, see id., they are required to show affirmatively 9 that they are the proper Plaintiffs as to claims brought for violations of Ayala’s rights. See 10 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). 11 Plaintiffs’ opposition makes clear they believe they have pled facts and have easily 12 met the pleading standard. But it is equally clear that nearly all these “facts” are actually 13 threadbare conclusions that fall far short of the Fed. R. Civ. P. 8 standard as explained by 14 the Supreme Court in Twombly and Iqbal. Although the opposition mentions Twombly and 15 Iqbal, it relies on much earlier cases that cite standards Twombly and Iqbal rejected. 16 Plaintiffs cite District Council 47, AFSCME v. Bradley, 795 F.2d 310, 314 (3d Cir. 1986) for 17 the principle that a complaint meets the pleading standard so long as “the defendant is able 18 to frame an answer thereto,” (Opp’n (Docket no. 10) at 1:12–13), and as long as it has 19 alleged sufficient facts to preclude a determination that the complaint is frivolous. (Id., at 20 1:15–18.) To illustrate their understanding of what this means, they explain: 21 22 Plaintiffs herein have plainly established that this case is anything but frivolous: Unknown (at this time) employees and officers of Defendants . . . shot Plaintiffs’ decedent (Mr. Mark Ayala) in excess of 37 times and killed him. 23 24 (Id., 1:19–23.) They go on to explain what “facts” they believe have been pled to show the 25 governmental entities’ liability: 26 27 28 Plaintiffs allege the following conduct by the Cities: (1) that the Cities granted actual and implied permission to the Individual Defendants to shoot decedent Mark Ayala in excess of 37 times and thus killing him . . . ; (2) that the Cities breached their legal duty to oversee and supervise the hiring, conduct, and employment of the Individual Defendants . . . ; (3) that the Cities failed to intervene in the misconduct that consisted of, inter alia, shooting decedent in -5- 15cv397 1 2 excess of 37 times and thus killing him, and handcuffing decedent after he was dead . . . Plaintiffs have further alleged that the Defendant Cities’ actions shock the conscience and were done with deliberate indifference, and with a purpose to harm unrelated to any legitimate law enforcement objective . . . . 3 4 (Id., 2:11–23.) These are exactly the kind of “[t]hreadbare recitals of the elements of a 5 cause of action, supported by mere conclusory statements” that Twombly makes clear does 6 not suffice. See Twombly, 550 U.S. at 555. 7 Plaintiffs’ opposition briefs appear to misconstrue Defendants as arguing that the 8 individual officers must be identified by name. Plaintiffs’ opposition argues that, without 9 discovery, they cannot identify the individual Doe Defendants. But this is not what 10 Defendants are arguing. It is common for plaintiffs to be unaware of defendants’ full names, 11 and to learn them only after an opportunity for discovery. See, e.g., Bivens v. Six Unknown 12 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Of course these 13 Defendants cannot be served with process until their identities are known. But the real 14 problem here is that the Complaint does not adequately allege what the individual 15 Defendants did that would render them liable, and that is what Defendants have correctly 16 pointed out. 17 Although the issue was not squarely presented, Plaintiffs should remember that fact 18 discovery is available only after they have adequately pled their claims. See Mujica v. 19 AirScan Inc., 771 F.3d 580, 593 (9th Cir. 2014) (citing Iqbal at 678–79) (“The Supreme Court 20 has stated, however, that plaintiffs must satisfy the pleading requirements of Rule 8 before 21 the discovery stage, not after it.”) The next step for them is to plead their claims adequately. 22 If they fail to do this, the case is subject to dismissal without an opportunity for discovery. 23 The complaint in the related case, 15cv818, Lerma-Mayoral v. City of El Centro, is far 24 more detailed. But Plaintiffs cannot rely on the pleadings in a separate case to satisfy Rule 25 8's requirements; they must plead their own claims in their own Complaint. 26 Jurisdiction 27 The Complaint names three federal agencies as Defendants. While the Complaint 28 alleges exhaustion of California Tort Claims Act remedies, it says nothing about exhaustion -6- 15cv397 1 of Federal Tort Claims Act remedies. Nor does it attempt to plead a claim under Bivens or 2 any federal statute under which officers of the United States could be liable. 3 The United States, federal agencies, and federal employees acting within their official 4 capacity enjoy sovereign immunity. Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806 5 (9th Cir. 2003); Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997). In the absence of a 6 waiver of sovereign immunity, the Court has no jurisdiction to hear claims against the United 7 States. United States v. Sherwood, 312 U.S. 584, 586 (1941). 8 The Court’s jurisdiction over Plaintiffs’ supplemental state claims depends on the 9 existence of a federal cause of action. Here, the state claims are subject to dismissal both 10 because they are inadequately pled, and for lack of jurisdiction. Because the Complaint 11 does not adequately plead even one federal cause of action, the state claims must also be 12 dismissed. In short, the Court’s jurisdiction over claims against the federal Defendants, and 13 over the state law causes of actions is doubtful. 14 Failure to Serve 15 Neither the City of Calexico nor the federal Defendants have answered or appeared, 16 and Plaintiffs have taken no steps to prosecute any claims they may have against these 17 Defendants. It is not even clear whether they have been served with process. At the time 18 this action was filed, Fed. R. Civ. P. 4(m) required a plaintiff to effect service within 120 days. 19 Since then, the time has been shortened to 90 days. But whichever deadline applies, it 20 appears Plaintiffs may not have complied with it. Assuming these Defendants have not yet 21 been served, the claims against them are subject to dismissal, unless Plaintiffs show good 22 cause for the failure. See Rule 4(m). 23 Conclusion and Order 24 Plaintiffs are ORDERED TO SHOW CAUSE why the City of Calexico and the federal 25 Defendants should not be dismissed for failure to timely serve them with process. See Fed. 26 R. Civ. P. 4(m). Plaintiffs may do so by either filing proofs of service showing that all these 27 Defendants have already been served with process, or by filing a memorandum of points 28 and authorities not to exceed five pages, showing good cause for the failure to serve. Either -7- 15cv397 1 way, they must show cause by March 22, 2016. Alternatively, they may dismiss all claims 2 against these Defendants. Failure to show cause within the time permitted will result in 3 dismissal of claims against these Defendants. 4 Because the Complaint fails to plead any causes of action, it is DISMISSED 5 WITHOUT PREJUDICE. No later than April 11, 2016, Plaintiffs must file an amended 6 complaint correcting all the defects this order has identified. 7 successfully within the time permitted, they should not assume they will be given 8 additional opportunities to amend. If they fail to amend 9 In particular, Plaintiffs must explain what happened during the incident in question, 10 and why the individual Defendants are liable. They must also allege facts, not mere 11 conclusions, to support the Monell claims. 12 jurisdiction over all claims. If claims against the federal Defendants are included, this means 13 explaining why these Defendants are not immune. And they must show that the Court has 14 15 16 IT IS SO ORDERED. DATED: March 8, 2016 17 18 HONORABLE LARRY ALAN BURNS United States District Judge 19 20 21 22 23 24 25 26 27 28 -8- 15cv397
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