Hollomon v. County of San Diego et al, No. 3:2018cv00528 - Document 17 (S.D. Cal. 2018)
Court Description: ORDER granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim. Plaintiff shall file an amended complaint no later than 14days after the date this order is issued. Signed by Judge M. James Lorenz on 10/30/2018. (sjt)
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Hollomon v. County of San Diego et al Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 ) DANIEL HOLLOMON, an individual, ) ) Plaintiffs, ) ) v. ) ) COUNTY OF SAN DIEGO, by and ) through the SAN DIEGO COUNTY ) SHERIFF’S DEPARTMENT, a public ) entity; DEPUTY SEAN ZAPPIA, an ) individual, DEPUTY CHRISTOPHER ) NEUFELD, an individual, DEPUTY ) SHERIFF JOHN MALAN, an individual, ) SERGEANT DAVID BUETHER, an ) individual, and DOES 1-50; ) ) Defendants. ) ) Case No.: 3:18-CV-00528-L-NLS ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF No. 12] 23 Pending before the Court is Defendants’ motion to dismiss pursuant to Federal Rule 24 of Civil Procedure 12(b)(6). Plaintiff filed an opposition, and Defendants replied. For the 25 reasons stated below, Defendants’ motion to dismiss is GRANTED IN PART AND 26 DENIED IN PART for failure to state a claim. 27 /// 28 /// 1 18-cv-00528-L-NLS Dockets.Justia.com 1 I. BACKGROUND 2 Plaintiff Daniel Hollomon (“Plaintiff” or “Hollomon”) was arrested for resisting or 3 interfering with a police officer in the performance of his duties pursuant to California 4 Penal Code Section 69 and harming a police animal pursuant to California Penal Code 5 Section 600(a).1 ECF No. 12-2. Defendants Deputies John Malan (“Malan”), Christopher 6 Neufeld (“Neufeld”), and Sean Zappia (“Zappia”) (hereinafter referred to together as 7 “Defendants”) arrested plaintiff, and Sergeant David Buether (“Buether”) arrived on the 8 scene after the arrest. 9 On March 15, 2017, Hollomon visited the Pala Casino. ECF No. 1 at 7. After being 10 asked to leave the casino’s premises for his drunken behavior, Hollomon began to walk 11 down a “dirt area” near Route 76 while waiting for his wife to pick him up. Id. 12 Approximately one-half mile from the casino, Hollomon was stopped by Malan, Neufeld, 13 and Zappia. Id. Plaintiff alleges that the deputies used excessive force in detaining him 14 and dragging him to the ground. Id. Plaintiff further alleges that Zappia ordered his police 15 dog to attack Plaintiff, and that the dog bit his face, ears, neck and upper arms, while Zappia 16 punched and kneed Plaintiff. Id. After the incident, Plaintiff was arrested for violating 17 California Penal Code Section 647(f) (Drunk in Public) and later taken to a local hospital. 18 Id. at 7. Buether arrived on the scene and, together the defendants, determined that they 19 would charge plaintiff with violating California Penal Code Sections 69 and 600(a). Id. at 20 8. Plaintiff alleges that he was “unarmed, passive, hand-cuffed and attempted to comply 21 with all of the demands being made of him” at all times during the incident. Id. 22 Plaintiff claims that Zappia was “untruthful in his report about events leading to the 23 release of the dog and his statements that [Plaintiff] placed [the dog] in a headlock, and 24 rolled over on top of him, and punched [the dog] in the face.” Id. at 8. Further, Plaintiff 25 alleges that Malan and Neufeld were “untruthful in their reports regarding their initial 26 27 28 1 The “resisting arrest” charge (Cal. Penal Code § 69) was reduced to a misdemeanor (Cal. Penal Code § 17(b)(5)) after Plaintiff’s preliminary hearing. See ECF No. 12-2. 2 18-cv-00528-L-NLS 1 contact with [Plaintiff]. They indicated that [Plaintiff] took an aggressive stance and 2 became hostile with them when they approached him.” 3 although Malan and Neufeld claimed that Hollomon was traveling westbound on Route 76 4 and was in danger of being struck by a vehicle, Plaintiff was in fact traveling on a dirt path 5 along Route 76 and therefore was in no danger. Id. Id. Plaintiff also claims that, 6 Plaintiff alleges that the Sheriff’s Department and “its officers, detectives, 7 supervisors and high ranking officials with the authority and ability to set forth and enforce 8 [the Department’s] policy and procedure . . . created and implemented unwritten official 9 policies, customs, and practices that permitted and encouraged its agents, employees, and 10 co-conspirators to deny Plaintiff his rights to equal protection under the law and to due 11 process of law, his right to be free from unreasonable searches and seizures, and other 12 rights guaranteed under the United States and California Constitutions, as well as statutory 13 and common law rights[.]” Id. at 8. Plaintiff alleges causes of action for assault, battery, 14 false arrest, false imprisonment, violation of California Civil Code Sections 51.7 and 52.1, 15 violation of 42 U.S.C. Sections 1983, 1985(2), 1985(3), and 1986, negligence, and 16 intentional infliction of emotional distress. Id. pp. 11-22. 17 Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants 18 moved to dismiss Plaintiff’s claims of false arrest and false imprisonment, California Civil 19 Code Sections 51.7 and 52.1, 42 U.S.C. Sections 1983, 1985(2), 1985(3), and 1986, 20 intentional infliction of emotional distress, and all claims as to Buether. See ECF No. 12- 21 1. 22 II. DISCUSSION 23 A. 24 A motion under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. 25 Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted where the complaint lacks 26 a cognizable legal theory. Shroyer v. New Cingular Wireless Serv., Inc., 622 F.3d 1035, 27 1041 (9th Cir. 2010) (internal quotation marks and citation omitted). Alternatively, a 28 complaint may be dismissed where it presents a cognizable legal theory, yet fails to plead Rule 12(b)(6) 3 18-cv-00528-L-NLS 1 essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 2 534 (9th Cir. 1984). 3 In reviewing a Rule 12(b)(6) motion, the Court must assume the truth of all factual 4 allegations and construe them most favorably to the nonmoving party. Huynh v. Chase 5 Manhattan Bank, 465 F.3d 992, 997, 999 n.3 (9th Cir. 2006). Even if doubtful in fact, 6 factual allegations are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 7 (2007). “A well-pleaded complaint may proceed even if it strikes a savvy judge that actual 8 proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id. at 9 556 (internal quotation marks and citations omitted). On the other hand, legal conclusions 10 need not be taken as true merely because they are couched as factual allegations. Id.; see 11 also Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). 12 Generally, the Court does not “require heightened fact pleading of specifics, but only 13 enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 14 570. Nevertheless, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to 15 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements 16 of a cause of action will not do.” Id. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 17 (1986)). Instead, the allegations “must be enough to raise a right to relief above the 18 speculative level.” Id. Thus, “[t]o survive a motion to dismiss, a complaint must contain 19 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 20 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 21 “Determining whether a complaint states a plausible claim for relief will be a 22 context-specific task that requires the reviewing court to draw on its judicial experience 23 and common sense.” Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the 24 plaintiff pleads factual content that allows the court to draw the reasonable inference that 25 the defendant is liable for the misconduct alleged.” Id. at 678. “The plausibility standard is 26 not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a 27 defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). 28 /// 4 18-cv-00528-L-NLS 1 B. 2 Generally, the Court may not consider material outside of the pleadings in a motion 3 to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Lee v. City of Los 4 Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, there are two exceptions to this rule: 5 courts may (1) consider material properly submitted with the complaint; or (2) may take 6 judicial notice of “matters of public record” pursuant to Rule 201 of the Federal Rules of 7 Evidence. Id. at 688-689 (quoting Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282). 8 Court proceedings and filings are properly subject to judicial notice if “those proceedings 9 have a direct relation to the matters at issue.” U.S. ex rel. Robinson Rancheria Citizens 10 Judicial Notice Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 11 Here, Defendants ask that the Court take judicial notice of the exhibits attached to 12 their motion to dismiss. See ECF No. 12-1 at 4. As discussed below, these materials are 13 directly related to the matters at issue in this case2, and so Defendants’ request for judicial 14 notice is GRANTED. 15 C. 16 “False arrest and false imprisonment overlap; the former is a species of the latter.” 17 Wallace v. Kato, 549 U.S. 384, 388 (2007). The Court “thus refer[s] to the two torts 18 together as false imprisonment.” Id. The tort of false imprisonment is defined as “the 19 ‘nonconsensual, intentional confinement of a person, without lawful privilege, for an 20 appreciable length of time, however short.’” Rhoden v. U.S., 55 F.3d 428, 430 (9th Cir. 21 1995) (quoting Fermino v. Fedco, Inc., 7 Cal.4th 701, 715 (1994)). Thus, in order to prevail 22 on a claim of false imprisonment under 42 U.S.C. 1983, a plaintiff must demonstrate that False Imprisonment 23 24 25 26 27 28 2 Exhibit A is the Preliminary Examination Minutes for People vs. Daniel Hollomon, Case No. CN370977, dated January 30, 2018, in the Superior Court of California, County of San Diego. ECF No. 12-2. Exhibit. B. is relevant portions of the Certified Transcript of the Preliminary Hearing for People vs. Daniel Hollomon, Case No. CN370977, dated January 30, 2018, in the Superior Court of California, County of San Diego. 5 18-cv-00528-L-NLS 1 there was no probable cause to arrest him. Hart v. Parks, 450 F.3d 1059, 1069 (9th Cir. 2 2006). 3 Plaintiff contends that there was no probable cause to arrest for public intoxication 4 or trespassing. ECF No. 13 at 4. However, these were not the only charges for which he 5 was arrested. Here, Judge Richard Monroy, San Diego Superior Court, found that there 6 was probable cause to hold Plaintiff over on both California Penal Code section 69 and 7 600(a) at the combined motion to suppress and preliminary hearing. See ECF No. 12-3 at 8 3. Judge Monroy’s reduction of count one, interfering with a police officer in the 9 performance of his duties (Cal. Pen. Code § 69), to a misdemeanor has no bearing on the 10 Court’s determination of whether probable cause existed to make the arrest. Thus, 11 Defendants’ motion to dismiss is GRANTED as to this claim. 12 D. 13 California Civil Code section 51.7 provides that “[a]ll persons within the jurisdiction 14 of the state have the right to be free from any violence, or intimidation by threat of violence, 15 committed against their persons or property because of political affiliation, or on account 16 of any characteristic listed or defined in subdivision (b) or (e) of Section 51 . . . or because 17 another person perceives them to have one or more of those characteristics.” Cal. Civ. Code 18 § 51.7. Subdivision (b) of California Civil Code Section 51 lists various protected classes, 19 including “sex, race, color, religion, ancestry, national origin, disability, medical condition, 20 genetic information, marital status, sexual orientation, citizenship, primary language, or 21 immigration status[,]” and subdivision (e) provides definitions for these terms. Cal. Civ. 22 Code § 51. California Civil Code Section 51.7 23 Plaintiff has not pleaded any facts alleging that he is a member of any of the 24 protected classes listed in Section 51, and has thus failed to state a claim as to this issue. 25 Further, plaintiff has not addressed this argument in his Opposition and apparently has 26 abandoned this claim. Qureshi v. Countryside Home Loans, Inc., no. 09-4198, 2010 U.S. 27 Dist. LEXIS 21843 at *6 n.2 (N.D. Cal. Mar. 10, 2010); see also Jenkins v. County of 28 6 18-cv-00528-L-NLS 1 Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005). For these reasons, Defendants’ Motion 2 to Dismiss is GRANTED as to this claim. 3 E. 4 California Civil Code Section 52.1 provides a private right of action for “[a]ny 5 individual whose exercise or enjoyment of rights secured by the Constitution or laws of the 6 United States, or of rights secured by the Constitution or laws of this state, has been 7 interfered with, or attempted to be interfered with.” Cal. Civ. Code § 52.1(b). Essentially, 8 Section 52.1 prohibits “all conduct aimed at ‘interfer[ing]’ with rights ‘secured by’ the 9 constitutional or statutory law of the United States, or of California, where the interference 10 is carried out ‘by threats, intimidation or coercion[.]’”Cornell v. City & County of San 11 Francisco, 17 Cal.App.5th 766, 789 (2017)(quoting Venegas v. County of Los Angeles, 32 12 Cal.4th 820, 841 (2004)). As Defendants concede, a violation of Section 52.1 does not 13 require a showing of “‘coercion independent from the coercion inherent in the wrongful 14 detention itself[.]’” See ECF No. 16 at 4. Cornell v. City & County of San Francisco, 17 15 Cal.App.5th 766, 798 (2017)(quoting Shoyoye v. County of Los Angeles, 203 Cal.App.4th 16 947, 958 (2012)). As the California Court of Appeals explained, “[n]othing in the text of 17 the statute requires that the offending ‘threat, intimidation or coercion’ be ‘independent’ 18 from the constitutional violation alleged.” Cornell, 17 Cal.App.5th at 800. Thus, in order 19 to plead a violation of Section 52.1, Plaintiff need not allege that Defendants infringed 20 upon a constitutional right separate from Plaintiff’s right to be free from excessive force. 21 Id. at 799. Rather, the statute is distinguished from similar tort claims by the level of intent 22 involved: “the egregiousness required by Section 52.1 is tested by whether the 23 circumstances indicate the arresting officer had a specific intent to violate the arrestee's 24 [constitutional] right” Cornell, 17 Cal.App.5th at 801. Accordingly, Plaintiff’s claim under 25 Section 52.1 will survive a motion to dismiss if he has alleged sufficient facts to indicate 26 that the officers acted with a specific intent to deprive him of his constitutional right to be 27 free from excessive force in effectuating his arrest. California Civil Code Section 52.1 28 7 18-cv-00528-L-NLS 1 Officers display the requisite specific intent when they act with the “particular 2 purpose” of depriving an individual of his constitutional rights; whether or not they act 3 with subjective “spite” is relevant to the analysis. Id. at 804. In Cornell, officers pursued 4 and arrested at gunpoint a police officer trainee while he was jogging in plain clothes. Id. 5 at 771. After he had been taken into custody and the arresting officers found no evidence 6 of any illegal activity, he was released but issued a citation for resisting arrest, which the 7 court determined any reasonable officer would know would likely result in his dismissal 8 from the police force, and which in fact did. Id. The court determined that this job loss was 9 inflicted upon the plaintiff as a way of “undermining his ability to claim to superiors that 10 he was arrested without probable cause[,]” and this evidence of spite was enough to meet 11 the standard of specific intent. Id. at 804. In a similar case, the California Court of Appeals 12 held that a plaintiff’s claim under Section 52.1 could survive summary judgment when, 13 although the police officers in this case had probable cause to arrest plaintiff, plaintiff 14 produced sufficient evidence to create an issue of fact as to whether the officers deliberately 15 utilized excessive force beyond that which was necessary to arrest plaintiff. B.B. v. County 16 of Los Angeles, 25 Cal.App.5th 115, 133 (2018). 17 Here, construing all facts in the Complaint in the light most favorable to Plaintiff, 18 Plaintiff’s Section 52.1 claim is sufficient to survive a motion to dismiss. Plaintiff alleges 19 that throughout the arrest Plaintiff was “unarmed, passive, hand-cuffed and attempted to 20 comply with all of the demands being made of him, [and defendants] nevertheless 21 unleashed a torrent of physical violence upon [him].” ECF No. 1 at 7. Plaintiff also alleges 22 that the Defendants were untruthful in their reports that Plaintiff placed the canine officer 23 “in a headlock, and rolled over on top of him, and punched [him] in the face” and that in 24 their initial contact with plaintiff he “took an aggressive stance and became hostile with 25 them when they approached him.” (Id.) As in Cornell, if the evidence shows that the 26 deputies violated Plaintiff’s constitutional rights and thereafter lied in an attempt to further 27 harm Plaintiff and obscure their misconduct, this may be sufficient evidence of a specific 28 intent to deprive Plaintiff of his constitutional rights. Further, if, as in B.B., Plaintiff can 8 18-cv-00528-L-NLS 1 later prove that the Defendants here deliberately used excessive force beyond what is 2 necessary to effectuate Plaintiff’s arrest, this may be enough to satisfy the standards of 3 Section 52.1. Accepting the allegations in the complaint as true, it is possible that further 4 evidence could reveal a specific intent on the part of the arresting deputies to deprive 5 Plaintiff of his constitutional right to be free from excessive force. For these reasons, 6 Defendants’ motion to dismiss is DENIED as to this claim. 7 F. 8 In order to state a claim under Section 1985(2), as Plaintiff purports to do, Plaintiff 9 must show “(1) a conspiracy between two or more persons, (2) to deter a witness by force, 10 intimidation or threat from attending court or testifying freely in any pending matter, which 11 (3) results in injury to the plaintiff.” David v. U.S., 820 F.2d 1038, 1040 (9th Cir. 1987). 42 U.S.C. Sections 1985 and 1986 12 As Defendants correctly note, Plaintiff has failed to plead any facts relating to 13 witness testimony. ECF No. 12 at 8. Thus, Plaintiff’s claim under Section 1985(2) cannot 14 survive a motion to dismiss. 15 In order to state a claim under Section 1985(3), Plaintiff must prove that he is a 16 member of a protected class, and that there was “some racial, or perhaps otherwise class- 17 based, invidiously discriminatory animus behind the conspirators' action.” Griffin v. 18 Breckenridge, 403 U.S. 88, 102 (1971); Watkins v. U.S. Army, 875 F.2d 699, 722 (9th Cir. 19 1989). As already established, Plaintiff has not pleaded any facts to suggest that he is a 20 member of a protected class. Thus, his claim under Section 1985(3) also fails. 21 Section 1986 provides that “[e]very person who, having knowledge that any of the 22 wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be 23 committed, and having power to prevent or aid in preventing the commission of the same, 24 neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party 25 injured, or his legal representatives, for all damages caused by such wrongful act[.]” 42 26 U.S.C. § 1986. Thus, Plaintiff cannot state a claim under Section 1986 since he failed to 27 state a claim under Section 1985. 28 9 18-cv-00528-L-NLS 1 Further, when Defendants raised these arguments in their Motion to Dismiss, 2 Plaintiff failed to respond to any of them. Thus, Plaintiff has abandoned these claims. 3 Qureshi, no. 09-4198, 2010 U.S. Dist. LEXIS 21843 at *6 n.2; see also Jenkins, 398 F.3d 4 at 1095 n.4 (9th Cir. 2005). 5 GRANTED as to Plaintiff’s Section 1985 and 1986 claims. For these reasons, defendants’ motion to dismiss is 6 G. 7 In order to state a claim of excessive force under Section 1983, Plaintiff must plead 8 that “(1) the defendants acting under color of state law (2) deprived plaintiff of rights 9 secured by the Constitution or federal statutes.” Gibson v. U.S., 781 F.2d 1334, 1338 (9th 10 Cir. 1986). An officer is properly considered to be acting under color of state law when 11 their “actions are in some way related to ‘the performance of [their] official duties[,]’” or 12 if they are purporting to act under color of state law. 3 Van Ort v. Estate of Stanewich, 92 13 F.3d 831, 838 (9th Cir. 1996) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995). 14 In determining whether officers utilized excessive force in effectuating an arrest, the court 15 must discern whether or not the amount of force used was objectively reasonable; such 16 reasonableness is “judged from the perspective of a reasonable officer on the scene, rather 17 than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). A 18 police officer deprives a citizen of his constitutional right to be free from excessive force 19 when the intrusion on a plaintiff’s Fourth Amendment rights outweighs the importance of 20 the “governmental interests alleged to justify the intrusion.” Scott v. Harris, 550 U.S. 372, 21 383 (2007). The Ninth Circuit has noted that “[b]ecause such balancing nearly always 22 requires a jury to sift through disputed factual contentions, and to draw inferences 23 therefrom, . . . summary judgment or judgment as a matter of law in excessive force cases 24 should be granted sparingly[,]” a consideration that is equally true in the context of a 25 motion to dismiss. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 26 27 28 42 U.S.C. Section 1983 3 Defendants do not dispute the fact that they were acting under color of state law at the time of the arrest. See ECF No. 12 at 7-8. 10 18-cv-00528-L-NLS 1 (9th Cir. 2003). In balancing a claimant’s constitutional rights against the government 2 interest involved in the incident, the Court must consider several factors, “including the 3 severity of the crime at issue, whether the suspect poses an immediate threat to the safety 4 of the officer or officers, and whether he is actively resisting arrest or attempting to evade 5 arrest by flight.” Id. 6 In Gregory v. County of Maui, police pinned to the ground and handcuffed a 7 trespasser who stopped breathing during the altercation and was later pronounced dead 8 from a heart attack. 523 F.3d 1103, 1105 (9th Cir. 2008). The Ninth Circuit held that the 9 officers did not use excessive force because they had been informed that the trespasser had 10 assaulted another man prior to the officers arriving at the scene, they had reason to believe 11 that he was under the influence of drugs, and he threatened them with a pen which he 12 refused to drop. Id. at 1106-07. Additionally, the officers attempted to persuade the 13 suspect to drop his weapon before engaging him physically, and never struck him or used 14 a weapon against him. Id. at 1107. 15 Here, Plaintiff was initially stopped by the deputies for being drunk in public. ECF 16 No. 1 at 7. As detailed above, Plaintiff has alleged that he was passive and compliant 17 throughout his arrest. Id. Viewed in the light most favorable to Plaintiff, these facts 18 suggest that he did not pose a threat to the safety of the officers. However, probable cause 19 was later found for Plaintiff’s resisting arrest charge, a fact that weighs in favor of the 20 Defendants’ reasonableness in the way they handled the situation. Whether or not this 21 situation warranted the amount of force exercised by the deputies in deploying their canine 22 is an issue unfit for disposition in a motion to dismiss. This determination requires a careful 23 inspection of the evidence, which is not available to us at this stage of the litigation. Thus, 24 at this point, the Court cannot dismiss this claim on the grounds that Defendants did not 25 unreasonably infringe upon Plaintiff’s constitutional rights. 26 Defendants contend that they are entitled to qualified immunity with respect to this 27 claim. ECF No. 12 at 7-8. Government officials are entitled to qualified immunity unless 28 their conduct “violate[s] clearly established statutory or constitutional rights of which a 11 18-cv-00528-L-NLS 1 reasonable person would have known.” White v. Pauly, 137 S.Ct. 548 (2017) (internal 2 citations omitted). Rights are clearly established when precedent can be identified holding 3 officers liable under similar circumstances. Marziti v. First Interstate Bank of California, 4 953 F.2d 520, 523 (1992). Plaintiff bears the burden of identifying such case law. Id. Here, 5 Plaintiff has identified no case law holding officers liable for conduct similar to the alleged 6 actions of the deputies here – specifically, releasing a canine on a suspect after he has 7 already been restrained. 8 However, the Court has identified precedent in which officers have been held liable 9 for similar conduct. In Mendoza v. Block, a robbery suspect who police believed to be 10 armed hid from police in some bushes. 27 F.3d 1357, 1362 (9th Cir. 1994). Police warned 11 him that if he did not surrender they would send their canine in to pull him out, and after 12 the suspect refused to emerge, the canine dragged him out of the bushes. Id. The police 13 dog maintained a bite hold on the suspect until he stopped struggling and the officers were 14 able to handcuff him. Id. The court explained that the officers were not entitled to qualified 15 immunity because, although there were few cases involving the use of police dogs to 16 apprehend fleeing suspects, there was ample law available to the officers regarding the use 17 of excessive force, which the court reasoned could just as easily involve a police dog as 18 any other weapon. Id. at 1361-1362. Thus, “no particularized case law is necessary for a 19 deputy to know that excessive force has been used when a deputy sics a canine on a 20 handcuffed arrestee who has fully surrendered and is completely under control.” Id. at 21 1362. This analysis was elaborated upon in a later case, in which the court held that the 22 continued use of a canine on a suspect who had already surrendered was unlawful. Koistra 23 v. County of San Diego, 310 F.Supp.3d 1066, 1084 (S.D. Cal. 2018). In the present case, 24 Plaintiff has alleged that Defendants deployed their canine despite the fact that he was 25 passive throughout the arrest. ECF No. 1 at 7. As such, the Defendants’ conduct may have 26 violated Plaintiff’s clearly established constitutional rights of which a reasonable person 27 would have known. For these reasons, Defendants’ motion to dismiss is DENIED as to 28 this claim. 12 18-cv-00528-L-NLS 1 H. 2 In order to state a claim for intentional infliction of emotional distress, a plaintiff 3 must plead facts which allege “(1) outrageous conduct by the defendant, (2) intention to 4 cause or reckless disregard for the probability of causing emotional distress, (3) severe 5 emotional suffering and (4) actual and proximate causation of the emotional distress.” 6 Bogard v. Employers Casualty Co., 164 Cal.App.3d 602, 615 (1985) (internal citations 7 omitted). Intentional Infliction of Emotional Distress 8 Defendants contend that Plaintiff has failed to state a claim of intentional infliction 9 of emotional distress because he has not identified any outrageous conduct on behalf of the 10 defendants, and thus has failed to satisfy the first element of the claim. ECF No. 12 at 8- 11 9. A defendant's conduct is “outrageous” when it is so “extreme as to exceed all bounds 12 of that usually tolerated in a civilized community.” Hughes v. Pair, 46 Cal.4th 1035, 1050- 13 51 (2009) (quoting Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001 (1993)). In 14 Cervantez v. J. C. Penney Co., the court held that nonsuit was improper for the plaintiff’s 15 claim of intentional infliction of emotional distress when a security guard at a retail store 16 stopped and arrested plaintiff and his friend, accusing them of stealing although they did 17 not do so in his presence. 24 Cal.3d 579, 590 (1979) (overturned by legislative action on 18 other grounds). The court reasoned that “plaintiff presented evidence that, if believed, 19 would reasonably support an inference that [the security guard] arrested him either with 20 knowledge that plaintiff had not committed any offense or with reckless disregard for 21 whether he had or had not.” Id. at 593. Similarly, in this case Plaintiff’s claim of intentional 22 infliction of emotional distress cannot be dismissed because Plaintiff has pleaded facts 23 which, if believed, may give rise to a violation of California Civil Code Section 52.1 and 24 use of excessive force pursuant to 42 U.S.C. Section 1983. If Plaintiff prevails on these 25 claims, it follows that defendants’ conduct also “exceed[ed] all bounds of [conduct] usually 26 tolerated in a civilized community,” and is thus sufficiently “outrageous” to satisfy a claim 27 of intentional infliction of emotional distress. Hughes, 46 Cal.4th at 1050-51. For this 28 reason, Defendants’ motion to dismiss is DENIED as to this claim. 13 18-cv-00528-L-NLS 1 2 I. Claims Against Sergeant Buether Defendants contend that all claims against Buether should be dismissed, because he 3 was not present during the incident giving rise to the ECF claim. ECF No. 12 at 9. Under 4 42 U.S.C. Section 1983, liability can extend to those whose individual actions do not rise 5 to the level of a constitutional violation if they perform functions “integral” to the alleged 6 violation. Bravo v. City of Santa Maria, 665 F.3d 1076, 1089-90 (9th Cir. 2011). However, 7 the Ninth Circuit cautioned that “the ‘integral participant’ doctrine does not implicate 8 government agents who are ‘mere bystanders’ to [a constitutional violation].” Id. at 1090. 9 In Bravo, the court held that officers who conducted a background check prior to the 10 execution of a search warrant were not liable for alleged violations of the Fourth 11 Amendment during its execution because they were not present during the search. Id. at 12 1090. The court reasoned that they were “not even bystanders,” and thus could not be held 13 liable. Id. Similarly, here Plaintiff concedes that Buether was not present during the arrest 14 in which the alleged use of excessive force occurred. ECF Nos 1 at 7; 13 at 8. Thus, 15 Buether was not an “integral participant” in the arrest, but rather a “mere bystander[,]” and 16 Plaintiff’s Section 1983 claim must be dismissed as to Buether. 17 Vicarious liability is not proper under Section 1983 and California Government 18 Code Section 820.8. 42 U.S.C. § 1983; Cal. Gov. Code § 820.8. Indeed, Plaintiff concedes 19 that he is not relying upon a theory of vicarious liability. ECF No. 13 at 8. Rather, Plaintiff 20 claims that Buether “knowingly allowed subordinate personnel, Defendants Neufeld, 21 Malan, and Zappia to intentionally covered [sic] up the misconduct of the Deputies’ 22 wrongdoing[.]” Id. at 9. Plaintiff alleges that this cover-up forms the basis of a negligence 23 claim against Buether for his failure to “properly test, screen, examine and evaluate” the 24 officers before and during their employment, and for failing to “properly train, monitor, 25 control, report, discipline, or otherwise supervise deputies, and further failure to control, 26 report, punish, or terminate said deputies after learning of the deputies violent and abusive 27 actions[.]” (Id.) In their reply, Defendants do not address plaintiff’s negligence claim. ECF 28 No. 16 at 6-7. For these reasons, Defendants’ motion to dismiss is GRANTED as to 14 18-cv-00528-L-NLS 1 Buether for Plaintiff’s claims of violation of California Civil Code Section 52.1, excessive 2 force under Section 1983, and intentional infliction of emotional distress, as well as the 3 claims that were dismissed as to all Defendants. However, as Defendants did not address 4 the claims against Buether for negligence, Defendants’ motion to dismiss is DENIED as 5 to this claim. 6 J. 7 When dismissing a complaint for failure to state a claim, “a district court should 8 grant leave to amend even if no request to amend the pleading was made, unless it 9 determines that the pleading could not possibly be cured by the allegations of other facts.” 10 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal citations omitted). 11 Plaintiff requests leave to amend his complaint if any part of Defendants’ motion to dismiss 12 is granted. ECF No. 13 at 12. The Court finds that the deficiencies in the initial complaint 13 could be cured by amendment. As such, the Court GRANTS Plaintiff’s request for leave 14 to amend its initial complaint. Plaintiff shall file an amended complaint no later than 14 15 days after the date this order is issued. 16 III. 17 18 19 20 21 Leave to Amend Complaint Conclusion For the foregoing reasons, Defendant's motion to dismiss is GRANTED IN PART AND DENIED IN PART. IT IS SO ORDERED. Dated: October 30, 2018 22 23 24 25 26 27 28 15 18-cv-00528-L-NLS
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