Abuka v. City of El Cajon et al, No. 3:2017cv00089 - Document 34 (S.D. Cal. 2017)

Court Description: ORDER denying Defendants' 16 Amended Motion to Strike First Amended Complaint; granting in part and denying in part Defendants' 17 Motion to Dismiss. Court denies Officer Gonsalves' Motion to Dismiss, but grants the City of El Cajon's Motion to Dismiss. Court gives Plaintiff leave to amend the First Amended Complaint. Amended Complaint must be filed by 9/8/2017. Signed by Judge Cynthia Bashant on 8/25/2017. (jah)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD OLANGO ABUKA, Plaintiff, 12 13 14 15 Case No. 17-cv-00089-BAS-NLS ORDER: (1) DENYING MOTION TO STRIKE (ECF No. 16); AND v. (2) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (ECF No. 17) CITY OF EL CAJON, et al., Defendants. 16 17 18 Richard Abuka is the father of Alfred Olango, shot and killed by El Cajon 19 Police Officer Richard Gonsalves. (First Amended Complaint (“FAC”) ¶ 10, ECF 20 No. 6.) Mr. Abuka has filed a two count Complaint against both Officer Gonsalves 21 and the City of El Cajon (“City”), alleging a violation of his right to substantive due 22 process under the Fourteenth Amendment by the unjustified shooting of his son and 23 interference with his familial relationship and freedom of association by Officer 24 Gonsalves’s use of excessive force and failure to intervene or provide medical 25 treatment. (FAC.) Both counts are brought under 42 U.S.C. § 1983. 26 The City and Officer Gonsalves move both to strike any references to 27 negligence on the part of Officer Gonsalves (ECF No. 16) and to dismiss the FAC 28 for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 17). The –1– 17cv0089 1 Court finds these motions suitable for determination on the papers submitted and 2 without oral argument. See Civ. L.R. 7.1(d)(1). 3 For the reasons stated below, the Court DENIES the Motion to Strike (ECF 4 No. 16) and GRANTS IN PART AND DENIES IN PART the Motion to Dismiss 5 (ECF No. 17). The Court dismisses the City from the Complaint, but denies Officer 6 Gonsalves’s Motion to Dismiss on the grounds of qualified immunity. 7 8 I. STATEMENT OF FACTS 9 According to the FAC, on September 27, 2016, Mr. Olango’s sister called 911 10 three times seeking emergency medical help for her brother “who she believed was 11 experiencing a mental breakdown” at a shopping center in El Cajon. (FAC ¶ 19.) 12 Fifty minutes after her telephone calls, El Cajon Police Officer Richard Gonsalves 13 arrived at the shopping center. (FAC ¶ 20.) Within one minute of his arrival, Officer 14 Gonsalves shot Mr. Olango four times, killing him. (Id.) Mr. Olango was unarmed. 15 (Id.) Officer Gonsalves provided no advance warning to Mr. Olango before shooting. 16 (FAC ¶ 24.) 17 The FAC alleges that, before arriving at the scene, Officer Gonsalves knew 18 Mr. Olango was having a mental crisis. (FAC ¶ 21.) Officer Gonsalves allegedly 19 was not investigating a crime at the time, and he knew Mr. Olango had not threatened 20 anyone with harm. (Id.) Nonetheless, Officer Gonsalves “confronted, chased, and 21 cornered” Mr. Olango. (Id.) 22 Mr. Abuka alleges Officer Gonsalves acted negligently in his pre-shooting 23 tactical conduct and decision-making by escalating to deadly force without warning, 24 failing to wait for the PERT (Psychiatric Emergency Response Team) to arrive before 25 confronting Mr. Olango, and not attempting non-lethal alternatives. (FAC ¶ 23.) 26 According to the allegations, Mr. Olango posed no threat to Officer Gonsalves, 27 and Officer Gonsalves knew Mr. Olango posed no threat. (FAC ¶ 24.) Finally, the 28 –2– 17cv0089 1 FAC alleges that Officer Gonsalves “failed to request medical aid for [Mr. Olango] 2 as he lay dying on the ground as the result of multiple bullet wounds.” (Id.) 3 With respect to the City, Mr. Abuka alleges the City made “dilatory dispatch 4 decisions,” failed to train and supervise Officer Gonsalves, and negligently retained 5 Officer Gonsalves as an officer “despite his demonstrated unfitness.” (FAC ¶ 27.) 6 7 II. LEGAL STANDARD 8 A. Motion to Dismiss 9 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 10 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 11 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court 12 must accept all factual allegations pleaded in the complaint as true and must construe 13 them and draw all reasonable inferences from them in favor of the nonmoving party. 14 Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a 15 Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, 16 rather, it must plead “enough facts to state a claim to relief that is plausible on its 17 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial 18 plausibility when the plaintiff pleads factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the misconduct alleged.” 20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 21 “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 22 liability, it stops short of the line between possibility and plausibility of ‘entitlement 23 to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). 24 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 25 relief’ requires more than labels and conclusions, and a formulaic recitation of the 26 elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting 27 Papasan v. Allain, 478 U.S. 265, 286 (1986) (alteration in original). A court need 28 not accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. Despite the deference –3– 17cv0089 1 the court must pay to the plaintiff’s allegations, it is not proper for the court to assume 2 that “the [plaintiff] can prove facts that [he or she] has not alleged or that defendants 3 have violated the . . . laws in ways that have not been alleged.” Associated Gen. 4 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 5 (1983). 6 7 B. Motion to Strike 8 Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, the court may 9 strike from a complaint any matter that is “redundant, immaterial, impertinent, or 10 scandalous.” Fed. R. Civ. P. 12(f). “The function of a 12(f) motion is to avoid the 11 expenditure of time and money that must arise from litigating spurious issues by 12 dispensing with those issues prior to trial.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 13 1527 (9th Cir. 1993) (quoting Sidney-Vinstein v. A.H. Robins, Co., 697 F.2d 880, 885 14 (9th Cir. 1983), rev’d on other grounds, 510 U.S. 517 (1994)). 15 “‘Immaterial’ matter is that which has no essential or important relationship to 16 the claim for relief.” Id. “‘Impertinent’ matter consists of statements that do not 17 pertain, and are not necessary, to the issues in question.” Id. 18 “Rule 12(f) motions are generally disfavored” partly “because of the limited 19 importance of pleadings in federal practice.” Bureerong v. Uvawas, 922 F. Supp. 20 1450, 1478 (C.D. Cal. 1996) (citations omitted). 21 22 III. ANALYSIS 23 A. Motion to Dismiss 24 When the court considers a motion to dismiss based on qualified immunity, 25 the court must ask first, assuming all facts in the complaint are true and taking these 26 facts in the light most favorable to the plaintiff, do the alleged facts show the officer’s 27 conduct violated a constitutional right? Billington v. Smith, 292 F.3d 1177, 1183 (9th 28 Cir. 2002), abrogated on other grounds by County of Los Angeles v. Mendez, –4– 17cv0089 1 __U.S.__, 137 S. Ct. 1539 (2017). “If not, then ‘there is no necessity for further 2 inquiries concerning qualified immunity.’ If so, then, ‘the next sequential step is to 3 ask whether the right was clearly established.’ A constitutional right is clearly 4 established when, ‘on a favorable view of the [allegations],’ ‘it would be clear to a 5 reasonable officer that his conduct was unlawful in the situation he confronted.’” Id. 6 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). Thus, this Court looks first at 7 the alleged constitutional violation. 8 9 Plaintiff alleges that the Defendants’ conduct violated his right to substantive due process under the Fourteenth Amendment. A parent has a Fourteenth 10 Amendment right to the companionship and society of his son. Curnow v. Ridgecrest 11 Police, 952 F.2d 321, 325 (9th Cir. 1991). “Official conduct that ‘shocks the 12 conscience’ in depriving [a parent] of that interest is cognizable as a violation of due 13 process.” Hayes v. County of San Diego, 736 F.3d 1223, 1230 (9th Cir. 2013) 14 (quoting Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)). “In determining 15 whether excessive force shocks the conscience, the Court must first ask ‘whether the 16 circumstances are such that actual deliberation [by the officer] is practical.’” Id. 17 (alteration in original) (quoting Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 18 2008)). 19 indifference’ may suffice to shock the conscience. On the other hand, where a law 20 enforcement officer makes a snap judgment because of an escalating situation, his 21 conduct may be found to shock the conscience only if he acts with a purpose to harm 22 unrelated to legitimate law enforcement objectives.” Id.; see also Moreland v. Las 23 Vegas Metro. Police Dept., 159 F.3d 365, 373 (9th Cir. 1998) (noting the controlling 24 question is whether the officer acted with a purpose to harm that was unrelated to his 25 attempt to stop the individual from endangering others). “Where actual deliberation is practical, then an officer’s ‘deliberate 26 Thus, an officer using deadly force to support a legitimate law enforcement 27 objective does not violate the Fourteenth Amendment. However, an officer using 28 force that is (i) meant to teach a suspect a lesson, (ii) committed to “get even” with –5– 17cv0089 1 the suspect, or (iii) used in the “rare situations where the nature of an officer’s 2 deliberate physical contact is such that a reasonable factfinder would conclude the 3 officer intended to harm, terrorize or kill” does violate the Fourteenth Amendment. 4 Porter, 546 F.3d at 1140-41 (quoting Davis v. Township of Hillside, 190 F.3d 167, 5 172-74 (3d Cir. 1999)); Wilkinson v. Torres, 610 F.3d at 554 (“[A] purpose to harm 6 might be found where an officer uses force to bully a suspect or get even.”). 7 For purposes of this Motion to Dismiss, the Court assumes that the decision 8 by Officer Gonsalves to shoot Mr. Olango, which according to the FAC was made 9 within one minute of his reaching the scene, was a snap judgment that was the result 10 of an escalating situation. Therefore, the Court looks at whether the FAC makes 11 allegations that support a conclusion that Officer Gonsalves acted with a purpose to 12 harm unrelated to legitimate law enforcement objectives. 13 Assuming the allegations in the FAC are true, Plaintiff claims that at the time 14 Officer Gonsalves shot and killed Mr. Olango, he knew: (1) Mr. Olango was having 15 a mental breakdown (FAC ¶ 21); (2) Mr. Olango had not committed any crime (id.); 16 (3) Mr. Olango had not threatened anyone (id.); and (4) Mr. Olango posed no threat 17 to Officer Gonsalves (FAC ¶ 24). Finally, the FAC alleges that after shooting Mr. 18 Olango, Officer Gonsalves “failed to request medical aid for [Mr. Olango] as he lay 19 dying on the ground as the result of multiple bullet wounds.” (Id.) Taking these 20 allegations in a light most favorable to the Plaintiff, as the Court must do at this stage 21 of the proceedings, the Court concludes these allegations are sufficient to support the 22 claim that Officer Gonsalves acted with a purpose to harm unrelated to legitimate 23 law enforcement objectives, and hence his conduct “shocked the conscience” and 24 violated a constitutional right. 25 Under part two of the qualified immunity analysis, the Court must determine 26 whether the right that was violated was clearly established at the time it was violated. 27 See Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“Qualified immunity gives 28 government officials breathing room to make reasonable but mistaken judgments –6– 17cv0089 1 about open legal questions.”). The court must determine whether the rule was 2 sufficiently clear that “every ‘reasonable official would have understood that what 3 he is doing violates that right.’” Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 4 2011) (quoting Ashcroft v. al-Kidd, 563 U.S. at 743). “[E]xisting precedent must 5 have placed the statutory or constitutional question beyond debate.” White v. Pauly, 6 __U.S.__, 137 S. Ct. 548, 551 (2017) (per curiam) (quoting Mullenix v. Luna, 7 __U.S.__, 136 S. Ct. 305, 308 (2015)). “[T]he clearly established law must be 8 ‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. at 552 (citing 9 Anderson v. Creighton, 483 U.S. 635, 640 (1987)). 10 Although it is in the Fourth Amendment context, reviewing case law on 11 constitutional violations resulting from an officer shooting a suspect is helpful in 12 evaluating whether a reasonable officer would have understood that he violated a 13 clearly established right. 14 definitively, “[a] police officer may not seize an unarmed, nondangerous suspect by 15 shooting him dead.” 471 U.S. 1, 11 (1985). The Court further articulated, “[t]he use 16 of deadly force to prevent the escape of all felony suspects, whatever the 17 circumstances, is constitutionally unreasonable.” Id. Furthermore, “[w]here the 18 suspect poses no immediate threat to the officer and no threat to others, the harm 19 resulting from failing to apprehend him does not justify the use of deadly force to do 20 so.” Id. In Tennessee v. Garner, the Supreme Court held 21 The Court finds the allegations in the FAC, as articulated above, are sufficient 22 to conclude that—at the time Officer Gonsalves shot and killed Mr. Olango—it was 23 clearly established that someone who is unarmed, is not a threat to anyone, and had 24 not committed any crime has the right not to be shot and killed. The Court 25 distinguishes the recent Supreme Court case of County of Los Angeles v. Mendez, 26 which held that an officer may not be liable for an otherwise reasonable use of force 27 where the officer intentionally or recklessly provoked the violent confrontation, 28 because Plaintiff in this case clearly articulates an unreasonable use of force that –7– 17cv0089 1 violates the Fourteenth Amendment without any reference to the old Ninth Circuit 2 “provocation rule.” See 137 S. Ct. at 1547-48. 3 Hence, assuming everything in the FAC is true and drawing all reasonable 4 conclusions in favor of Plaintiff, the Court concludes Plaintiff has sufficient 5 allegations to meet the qualified immunity burden at this stage of the proceedings. 6 7 B. Motion to Strike 8 Defendants move to strike any reference to the fact that Officer Gonsalves’s 9 pre-shooting conduct may have been negligent. (ECF No. 16.) In the FAC, Plaintiff 10 alleges that Officer Gonsalves acted negligently in his pre-shooting tactical conduct 11 and decision-making by escalating to deadly force without warning, failing to wait 12 for the PERT (Psychiatric Emergency Response Team) to arrive before confronting 13 Olango, and not attempting non-lethal alternatives. (FAC ¶ 23.) 14 The fact that an officer’s conduct, leading up to a deadly confrontation, was 15 imprudent, inappropriate, or even reckless is not sufficient to avoid dismissal where 16 the officer’s conduct at the time of the shooting does not otherwise shock the 17 conscience. George v. Morris, 736 F.3d 829, 839, n.14 (9th Cir. 2013); see also City 18 & County of San Francisco v. Sheehan, __U.S.__, 135 S. Ct. 1765, 1771 (2015) 19 (alleging merely bad tactics that result in a deadly confrontation that could have been 20 avoided is insufficient) (citing Billington, 292 F.3d at 1188). Moreover, looking at 21 pre-shooting tactics does risk “the sort of hindsight bias the Supreme Court has 22 forbidden.” Id. Furthermore, the Court recognizes that in Mendez, the Supreme 23 Court rejected the Ninth Circuit’s “provocation rule” that an officer may be liable for 24 an otherwise reasonable use of force where the officer intentionally or recklessly 25 provoked the violent confrontation by an act that was itself an independent Fourth 26 Amendment violation. 137 S. Ct. at 1547-48. 27 Nonetheless, as discussed above, whether Officer Gonsalves acted with a 28 purpose to harm unrelated to any law enforcement objective will be a key factual –8– 17cv0089 1 analysis in this case. His pre-shooting conduct may be relevant to support a claim 2 that Officer Gonsalves was not acting to fulfill a law enforcement objective, but 3 instead was trying to teach the suspect a lesson, bullying him, attempting to get even 4 with him, or intending to harm, terrorize, or kill him. See Davis, 190 F.3d at 173; 5 Wilkinson v. Torres, 610 F.3d at 554. 6 Therefore, the Court DENIES the Motion to Strike while noting that the fact 7 that Officer Gonsalves may have acted negligently will be insufficient on its own to 8 support the alleged constitutional violation. 9 10 C. Monell Liability 11 A municipality generally is not liable for the unconstitutional conduct of its 12 employees. Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978). 13 “[A] municipality can be found liable under § 1983 only where the municipality itself 14 causes the constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 15 385 (1989) (citing Monell) (emphasis in original). “It is only when the execution of 16 the government’s policy or custom . . . inflicts the injury that the municipality may 17 be held liable under § 1983.” Id. (quoting Springfield v. Kibbe, 480 U.S. 257, 267 18 (1987)) (internal quotations omitted). 19 Thus, under Monell, in order to allege a § 1983 claim against a municipality, a 20 plaintiff must allege: (1) the plaintiff was deprived of a constitutional right; (2) the 21 municipality had a policy that amounted to deliberate indifference of plaintiff’s 22 constitutional right; and (3) the policy was the moving force behind the constitutional 23 violation that injured the plaintiff. Dougherty v. City of Covina, 654 F.3d 892, 900 24 (9th Cir. 2011) (citing Plumeau v. Sch. Dist. No. 40 County of Yamhill, 130 F.3d 432, 25 438 (9th Cir. 1997)). 26 The failure of a municipality to train its employees “may amount to a policy 27 of deliberate indifference” such that liability under Monell has been sufficiently 28 alleged “if the need to train was obvious and the failure to do so made a violation of –9– 17cv0089 1 constitutional rights likely.” Dougherty, 654 F.3d at 900 (citing Harris, 489 U.S. at 2 390). “Similarly, a failure to supervise that is ‘sufficiently inadequate’ may amount 3 to ‘deliberate indifference.’” Id. (quoting Davis v. City of Ellensburg, 869 F.2d 1230, 4 1235 (9th Cir. 1989)). “Mere negligence in training or supervision, however,” is 5 insufficient. Id. 6 The City argues that the allegations in the FAC are insufficient to amount to 7 municipal liability under Monell. (ECF No. 17.) Plaintiff fails to address this 8 argument in his Opposition (ECF No. 19), and the Court could construe this silence 9 as “abandonment of the claim and concession that the claim be dismissed.” Quick 10 Korner Mkt. v. U.S. Dep’t of Agric., 180 F. Supp. 3d 683, n.12 (S.D. Cal. 2016) 11 (citing Conservation Force v. Salazar, 677 F. Supp. 2d 1203, 1211 (N.D. Cal. 2009)). 12 However, even without construing the lack of reply as a concession, the 13 allegations in the FAC are insufficient to amount to municipal liability under Monell. 14 First, the Plaintiff alleges that the City made “dilatory dispatch decisions.” (FAC ¶ 15 27.) Presumably this resulted in the alleged fifty minute delay between the time Mr. 16 Olango’s sister called 911 and the time a police officer responded. However, Plaintiff 17 fails to allege how this delay was a policy of “deliberate indifference,” as opposed to 18 the negligence of an employee. Furthermore, the FAC does not explain how this 19 alleged delay was the moving force behind or cause of the constitutional violation 20 (the later shooting of Mr. Olango by Officer Gonsalves). 21 Next, Plaintiff alleges the City failed to train and supervise Officer Gonsalves. 22 (FAC ¶ 27.) This allegation amounts to little more than a “label and conclusion” 23 found insufficient under Twombly. See 550 U.S. at 555. To succeed at the pleading 24 stage, Plaintiff must allege facts that support this largely legal conclusion. 25 Finally, Plaintiff alleges that the City negligently retained Officer Gonsalves 26 despite his “demonstrated unfitness.” (FAC ¶ 27.) Again, this conclusory statement 27 is devoid of factual support. Furthermore, simple negligence on the part of the City 28 is insufficient. See Dougherty, 654 F.3d at 900. – 10 – 17cv0089 1 Plaintiff fails to allege facts supporting a theory that the City is liable for the 2 acts of Officer Gonsalves or any other city employee. Hence, the Court GRANTS 3 the City’s Motion to Dismiss on this ground. 4 5 IV. CONCLUSION 6 The Court DENIES Defendants’ Motion to Strike (ECF No. 16). The Court 7 GRANTS IN PART AND DENIES IN PART Defendants’ Motion to Dismiss 8 (ECF No. 17), denying Officer Gonsalves’s Motion to Dismiss, but granting the 9 City’s Motion to Dismiss. 10 As a general rule, a court freely grants leave to amend a complaint that has 11 been dismissed, unless “the court determines that the allegation of other facts 12 consistent with the challenged pleading could not possibly cure the deficiency.” See 13 Fed. R. Civ. P. 15(a); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 14 1393, 1401 (9th Cir. 1986). Hence, the Court gives Plaintiff leave to amend the FAC. 15 Any amended Complaint must be filed by September 8, 2017. 16 IT IS SO ORDERED. 17 18 DATED: August 25, 2017 19 20 21 22 23 24 25 26 27 28 – 11 – 17cv0089