Henson et al v. Scottsdale, City of et al

Filing 44

ORDER granting 16 , 33 and 15 Motions to Dismiss for Failure to State a Claim. The claims against Defendant Judge James Blake, Judge Hendrix are dismissed with prejudice. The claims against Defendant Seth Peterson are dismissed without prejudi ce. The claims against Defendant Jim Thompson and the City of Scottsdale, the due process and excessive force claims against Officer Glass and the other unnamed police officers are dismissed with leave to amend. The remainder claims against Officer G lass, including her claims for unlawful arrest and unreasonable search and seizure, are dismissed without prejudice. Denying 17 Motion to Strike, 18 Motion for Additional Time and 40 Motion for Default Judgment. Plaintiff shall have 30 days leave to file an amended complaint that complies with Local Rule of Civil Procedure 7.1. The Clerk shall terminate this action without further notice on 9/5/2017 if Plaintiff fails to comply. Signed by Judge G Murray Snow on 8/2/17.(DXD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tanya Henson, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-17-00339-PHX-GMS City of Scottsdale, et al., 13 Defendants. 14 15 Pending before the Court are Defendants Judge Statia Hendrix and Officer 16 Michael Glass’s Amended Motion to Dismiss, (Doc. 15), Defendants Karen Close, 17 Natalie La Porte, and Cyndi Negron’s Motion to Dismiss, (Doc. 16), and Defendants Jim 18 Thompson, Judge James Blake, and Seth Peterson’s Motion to Dismiss, (Doc. 33). Also 19 pending are Plaintiffs Tom Henson and Tanya Henson’s Motion to Strike, (Doc. 17), 20 Motion for Time to Add Exhibits to the Motion to Strike, (Doc. 18), and Motion for 21 Entry of Default, (Doc. 40). For the following reasons, Defendants Judge Statia Hendrix 22 and Officer Michael Glass’s Motion to Dismiss is granted. (Doc. 15.) Defendants Karen 23 Close, Natalie La Porte, and Cyndi Negron’s Motion to Dismiss, (Doc. 16), and 24 Defendants Jim Thompson, Judge James Blake, and Seth Peterson’s Motion to Dismiss, 25 (Doc. 33) are granted. The Hensons’ Motion to Strike, (Doc. 17), and Motion for Entry 26 of Default, (Doc. 40), are both denied, and the Motion for Additional Time is denied as 27 moot. (Doc. 18.) 28 /// 1 BACKGROUND 2 Thomas and Tanya Henson brought this suit under §§ 1983, 1985, 1986, and 1988 3 of Title 42 against various state actors and one private citizen, Mr. Salvatore Marsala, as 4 well as a local company, All City Towing.1 5 themselves as “sovereign individuals” “living in the geographical location known as 6 Arizona.” (Id. at 2.) (Doc. 1.) Both Plaintiffs describe 7 Pursuant to Mrs. Henson’s account, she was driving her husband’s car when 8 Officer Glass turned on his lights and pulled her vehicle over. (Id. at 6.) Mrs. Henson 9 proceeded to try to call her husband. (Id.) Officer Glass came to her window, took her 10 phone away from her, and asked her to leave her vehicle. (Id. at 6−7.) Officer Glass 11 proceeded to take pictures of the text messages on Mrs. Henson’s phone that related to 12 the charges for which she was subsequently arrested. (Id. at 7.) He then informed her 13 that she was under arrest “for not obeying him.” (Id.) 14 Mrs. Henson was removed to Officer Glass’s police car, where she informed him 15 that she needed to obtain her medicine. 16 towed, and she was unable to recover her medication prior to going to jail. (Id.) Mr. 17 Henson eventually brought Mrs. Henson’s medication to the jail later that evening, and 18 19 20 21 22 23 24 25 26 27 28 (Id. at 8.) At that time her vehicle was being 1 Section 1983 is “generally not applicable to private parties” without a showing of joint action between the government and the private party. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003). Nothing in the Plaintiffs’ Complaint indicates that Defendant Salvatore Marsala “is a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980). Rather, the Plaintiffs allege that Defendant Marsala “filed false information to the City of Scottsdale and indirectly caused both Plaintiffs damage.” (Doc. 1 at 17.) There is no indication that “the state has so far insinuated itself into a position of interdependence with the private entity that it must be recognized as a joint participant in the challenged activity,” and thus there is no indication that joint action played a role in this case. Kirtley, 326 F.3d at 1093 (internal quotation and citation omitted). Therefore, in the absence of any allegations to plausibly suggest such joint activity, it does not appear to the Court that the Complaint states a claim against Defendant Marsala. The Court thus denies the Plaintiffs’ Motion for Entry of Default Judgment. See Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986) (explaining that a district court may deny default judgment where there are doubts regarding the merits of the Plaintiff’s substantive claim). -2- 1 Mrs. Henson was released shortly thereafter. (Id. at 8–9.) 2 Upon release from jail, Mr. and Mrs. Henson were required to pay sixty-five 3 dollars to have their vehicle released. (Id. at 10.) According to Mrs. Henson, Officer 4 Glass obstructed her ability to obtain her phone from the police, eventually leading her 5 husband to file an insurance claim to replace the phone before it was returned a week 6 after it was taken. (Id. at 10–11.) 7 Mrs. Henson appeared before Judge James Blake for her initial appearance. (Id. at 8 11.) At that time, she requested that Judge Blake establish that the Arizona Constitution 9 and laws applied to her before proceeding. (Id. at 11.) Judge Blake entered a plea of not 10 guilty on her behalf. (Id.) At a subsequent hearing, Judge Statia Hendrix presided. (Id.) 11 Again, Mrs. Henson asserts that the Judge never explained whether jurisdiction was 12 present. (Id.) Furthermore, at this hearing, Judge Hendrix refused to allow Mr. Henson, 13 a non-attorney, to speak. (Id.) Judge pro tem Jennifer Dalton presided over Mrs. 14 Henson’s next hearing, where Mrs. Henson again attempted to argue that the charges 15 against her could not stand due to the Court’s lack of jurisdiction over her. (Id. at 16 12−13.) Judge Hendrix presided over Mrs. Henson’s final hearing, where Mrs. Henson 17 again unsuccessfully raised the issue of jurisdiction. (Id. at 13.) Mrs. Henson also 18 alleges that Judge Hendrix failed to accommodate Mrs. Henson’s schedule when she set 19 the trial date. (Id.) 20 Public records reflect that Mrs. Henson was arrested on charges of disorderly 21 conduct, harassment by communication, harassment by following in public, and failure to 22 obey a police officer.2 (Doc. 15-1 at 2.) Mrs. Henson failed to appear at her bench trial, 23 and she was found guilty of both of the harassment charges and the failure to obey a 24 police officer charge. (Id. at 38.) 25 26 27 28 2 “A court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (internal quotation omitted). The court documents presented by the Defendants in their exhibit are public records, and are therefore properly considered. -3- 1 Mr. and Mrs. Henson filed a total of thirteen charges against the Defendants, 2 alleging causes of action that center on violations of the First, Fourth, Fifth, Sixth, Ninth, 3 and Fourteenth Amendments through §§ 1983, 1985, 1986, and 1988 of Title 42. (Doc. 1 4 at 15−18.) They seek $2,000,000 in compensatory damages and $500,000 in punitive 5 damages, as well as attorney’s fees. 6 Defendants filed motions to dismiss. (Docs. 15, 16, 33.) 7 8 (Id. at 18.) In response, the majority of the DISCUSSION I. Legal Standard 9 To survive a motion to dismiss for failure to state a claim pursuant to Federal Rule 10 of Civil Procedure 12(b)(6), a complaint must contain more than “labels and conclusions” 11 or a “formulaic recitation of the elements of a cause of action”; it must contain factual 12 allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. 13 Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “a complaint need not contain 14 detailed factual allegations . . . it must plead ‘enough facts to state a claim to relief that is 15 plausible on its face.’” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 16 2008) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the 17 plaintiff pleads factual content that allows the court to draw the reasonable inference that 18 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 19 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard “asks for more than 20 a sheer possibility that a defendant has acted unlawfully.” Id. When a complaint does not 21 “permit the court to infer more than the mere possibility of misconduct, the complaint has 22 alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal 23 quotation omitted). 24 When analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll 25 allegations of material fact are taken as true and construed in the light most favorable to 26 the nonmoving party.”3 Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, 27 28 3 Because the Hensons are pro se parties, the Court construes their Complaint liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts’ treatment of pro se filings; -4- 1 legal conclusions couched as factual allegations are not given a presumption of 2 truthfulness, and “conclusory allegations of law and unwarranted inferences are not 3 sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 4 1998). 5 II. Analysis 6 A. 7 Mr. Henson alleges that he incurred costs from Officer Glass’s impounding of his 8 vehicle and seizure of his cell phone following his wife’s arrest. (Doc. 1 at 16.) To 9 establish a cause of action under § 1983, however, the Plaintiff must establish that Officer 10 Glass’s conduct deprived him of his rights under federal law. The Hensons’ Complaint 11 does not sufficiently allege that Officer Glass’s impoundment of Mr. Henson’s vehicle, 12 or the seizure of Mr. Henson’s cell phone, deprived him of his rights under federal law.4 13 Arizona law authorizes a police officer to contact a company to tow a vehicle 14 following the arrest of the driver. See A.R.S. § 28-872. Section 28-872(H) further 15 provides that the owner of the vehicle that was properly removed by a tow truck company 16 is responsible for paying the costs incurred by towing and impounding the vehicle. Id. 17 The allegations of the complaint do not plausibly allege either that the law did not 18 authorize Officer Glass to have the car towed, or that such authorization violates his 19 rights under federal law. Therefore, Mr. Henson did not state a claim for which relief can 20 be granted based on the towing of his vehicle. Mr. Henson Fails to State a Claim Against the Defendants 21 Likewise, Mr. Henson fails to sufficiently state a claim for unreasonable seizure of 22 his cell phone. The Hensons allege that Mrs. Henson gave Officer Glass permission to 23 “look at her phone for text messages.” (Doc. 1 at 7.) Thereafter, the cell phone was 24 25 26 27 28 accordingly, we continue to construe pro se filings liberally when evaluating them under Iqbal.”). 4 Additionally, to the extent that Mr. Henson alleges that he suffered injuries due to the Defendants’ treatment of his wife, he fails to assert standing because he fails to allege that he personally suffered an injury in fact due to the Defendants’ treatment of Mrs. Henson. See United States v. SDI Future Health, Inc., 568 F.3d 684, 695 (9th Cir. 2009) (“A person has standing to sue for a violation of this particular right of the people only if there has been a violation as to him, personally.” (internal quotations omitted)). -5- 1 seized, and Mrs. Henson was arrested for harassment by communication and taken to the 2 police station. Federal law permits the seizure of property if it constitutes evidence of a 3 crime—“if evidence of crime is discovered, it may be seized and admitted in evidence.” 4 United States v. Edwards, 415 U.S. 800, 803 (1974). A search of a cell phone’s data 5 without consent is impermissible until a warrant has been obtained, but Mr. Henson’s 6 claim arises out of being deprived of the phone due to its seizure, not due to any improper 7 search. See generally Riley v. California, 134 S. Ct. 2473, 2493 (2014) (finding that 8 searching an arrestee’s cell phone data without consent or a warrant is impermissible 9 under the Fourth Amendment). Therefore, because there is no plausible allegation in the 10 complaint that the cell phone was improperly seized, Claim Five of the Complaint is 11 dismissed without prejudice. 12 B. 13 Mrs. Henson asserts claims against the City of Scottsdale for failing to train its 14 officers. To maintain such a claim, Mrs. Henson needed to allege facts that illustrate that 15 the “execution of a government’s policy or custom, whether made by its lawmakers or by 16 those whose edicts or acts may fairly be said to represent official policy” caused her 17 injuries. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). In other 18 words, a city may not be held liable for the acts of a single employee unless his actions 19 represented the official policy of the city. Id. at 658 (“[T]he language of § 1983, read 20 against the background of the same legislative history, compels the conclusion that 21 Congress did not intend municipalities to be held liable unless action pursuant to official 22 municipal policy of some nature caused a constitutional tort.”). Mrs. Henson did not 23 allege any facts that indicate that her alleged injuries were caused by the City of 24 Scottsdale’s policies, beyond her conclusory statement that “upon information and belief” 25 the City of Scottsdale has such policies. (Doc. 1 at 15−16.) This is insufficient, and 26 therefore, the claims against the City of Scottsdale are dismissed with leave to amend.5 27 28 Mrs. Henson’s Monell Claims Fail to Meet the Plausibility Standard 5 Mrs. Henson’s only claims against Defendant Jim Thompson are in connection with his role as the City of Scottsdale’s City Manager. Therefore, the claims against Mr. Thompson are dismissed as well. -6- 1 C. 2 Judicial officers, including municipal judges, are entitled to absolute immunity 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Judicial Immunity Bars Mrs. Henson’s Claims Against Judges Blake and Hendrix while performing judicial acts unless the judge has “acted in the clear absence of all jurisdiction.” See Stump v. Sparkman, 435 U.S. 349, 356–57 (1978) (internal quotation and citation omitted). The Hensons allege that the Defendant Judges in this case are not entitled to immunity because they did not have jurisdiction over the Hensons. As is evinced by the Complaint itself as well as the underlying convictions, this is not the case. The Hensons do not contest that they reside in Arizona. The Complaint, and the arrest records, indicates that Mrs. Henson was in Scottsdale at the time of her arrest. (Doc. 1 at 6, Doc. 15-1 at 4.) Under Arizona law, municipalities such as the City of Scottsdale are authorized to exercise jurisdiction over individuals that commit crimes within their city limits. See A.R.S. § 22-402 (granting municipal courts “jurisdiction of all cases arising under the ordinances of the city or town” as well as concurrent jurisdiction “of violations of laws of the state committed within the limits of the city or town.”). Furthermore, finding that the municipal court lacked jurisdiction over Mrs. Henson’s case would “necessarily imply the invalidity of [her] conviction or sentence,” and thus would run afoul of Heck v. Humphrey, 512 U.S. 477 (1994), which is discussed in more detail below. Id. at 487. Therefore, Judges Hendrix and Blake had jurisdiction over Mrs. Henson, and were entitled to absolute immunity as long as their actions were judicial in nature. There are four factors for determining if an action is judicial, including whether 25 (1) the precise act is a normal judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy centered around a case then pending before the judge; and (4) the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity. 26 Meek v. Cty. of Riverside, 183 F.3d 962, 967 (9th Cir. 1999) (internal quotation omitted). 27 The Hensons do not contest that these factors are satisfied, but rather continue to assert 28 that the Judges committed unlawful acts while engaging in actions that were judicial in 23 24 -7- 1 nature. (See Doc. 27.) Even assuming all of the Hensons’ allegations are true, they 2 remain barred by judicial immunity, and no amendment to them will alter this result. 3 Therefore, the claims against Judges Hendrix and Blake are dismissed with prejudice. 4 See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 D. The Majority of Mrs. Henson’s Remaining Claims are Barred by Heck v. Humphrey. “[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal,” or otherwise show that the conviction was invalid. Heck v. Humphrey, 512 U.S. at 486–87. “A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 487 (emphasis original). Therefore, “the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. For this reason, “[o]ne element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused.” Heck, 512 U.S. at 484. However, Heck does not apply where “the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed.” Id. Therefore, in certain excessive force cases, where the use of excessive force does not imply that the conviction was invalid, Heck will not bar the plaintiff from pursuing her suit. See generally Smith v. City of Hemet, 394 F.3d 689, 696 (9th Cir. 2005) (“[E]xcessive force used after a defendant has been arrested may properly be the subject of a § 1983 action notwithstanding the defendant’s conviction on a charge of resisting an arrest that was itself lawfully conducted.” (emphasis original)). 28 -8- 1 1. Seth Peterson, Karen Close, Natalie La Porte, and Cyndi Negron 2 Mr. and Mrs. Henson allege that prosecutors Seth Peterson, Karen Close, and 3 Natalie La Porte as well as paralegal Cyndi Negron are liable for their damages because 4 they “had no evidence or facts that the laws, statutes, or the Constitution applied to Mrs. 5 Henson to prosecute any alleged complaint” against her. 6 essentially a malicious prosecution claim. See Heck, 512 U.S. at 484. As Mrs. Henson 7 has not presented any evidence to demonstrate that the prior criminal conviction was 8 found to be invalid, these claims cannot stand. Id. Therefore, Mr. and Mrs. Henson’s 9 claims against Seth Peterson, Karen Close, Natalie La Porte, and Cyndi Negron are 10 2. This is dismissed without prejudice. 11 (Doc. 1 at 17.) Officer Glass 12 Mr. and Mrs. Henson’s claim against Officer Glass stem from their allegations of 13 unlawful arrest (Claims Three and Eleven), cruel and unusual punishment (Claim Four) 14 and wrongful search and seizure (Claim Five). To prevail on her claim of unlawful 15 arrest, Mrs. Henson “would have to demonstrate that there was no probable cause to 16 arrest [her].” Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998). 17 Mrs. Henson was convicted based on her failure to obey Glass’s requests and the text 18 messages contained in her cell phone, which she admits that she voluntarily turned over 19 to the police at the time of her stop. (Doc. 1 at 7.) A finding that this arrest was 20 “unlawful” due to the absence of probable cause would necessarily imply that her 21 subsequent conviction was invalid. Thus, her unlawful arrest claim is barred under Heck. 22 See Cabrera, 159 F.3d at 380 (dismissing a false imprisonment claim because “finding 23 there was no probable cause would ‘necessarily imply’ that Cabrera’s conviction for 24 disturbing the peace was invalid.”). 25 Mrs. Henson’s claims against Glass for wrongful search and seizure also fail. As 26 an initial matter, Mrs. Henson’s own complaint alleges that she voluntarily gave her 27 phone to Glass and gave him permission to look at her text messages, thus consenting to 28 the search. (Doc. 1 at 7.) Therefore, the search of the phone cannot form the foundation -9- 1 of an unreasonable search and seizure. Officer Glass impounded the vehicle following 2 Mrs. Henson’s arrest. As above, a finding that he did not have probable cause to do so 3 necessarily implies that her subsequent conviction was invalid. See Cabrera, 159 F.3d at 4 380. Therefore, both Mrs. Henson’s claims for wrongful search and seizure as well as 5 her claims for unlawful arrest are dismissed, and because “any amendment would be an 6 exercise in futility,” they are dismissed without prejudice. See Steckman, 143 F.3d at 7 1298. 8 However, Mrs. Henson’s excessive force claim is not barred by Heck. See 9 Cabrera, 159 F.3d at 380–81 (“On the other hand, Cabrera’s claims for the use of 10 excessive force and official cover-up of the alleged Fourth Amendment violations, if 11 successful, would not necessarily imply the invalidity of his conviction.”). Mrs. Henson 12 alleges that Officer Glass grabbed her wrist, dragged her out of her vehicle, and refused 13 to give her medication that she required. (Doc. 1 at 7−8.) The Court assumes, because it 14 is unclear, that these are the facts Mrs. Henson is relying upon as forming the foundation 15 of her cruel and unusual punishment claim in Claim Four, which the Court construes as a 16 due process and excessive force claim.6 17 The Defendants rely upon Smith v. City of Hemet, for the proposition that an 18 excessive force claim cannot survive under Heck if the plaintiff was convicted of failing 19 to obey. 394 F.3d at 695. This is incorrect. In Smith, the plaintiff was convicted for 20 resisting arrest in California, and “[i]n California, the lawfulness of the officer’s conduct 21 is an essential element of the offense of resisting, delaying, or obstructing a peace 22 officer.” Id. Furthermore, in California, an officer’s actions were not lawful if he was 23 acting with excessive force. Id. Therefore, a finding that an officer acted with excessive 24 force following a plaintiff’s conviction for resisting arrest would necessarily implicate the 25 26 27 28 6 The “whole point of the [Eighth] [A]mendment is to protect persons convicted of crimes.” Spain v. Procunier, 600 F.2d 189, 194 (9th Cir. 1979). The Due Process Clause generally governs pretrial detention. Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”). - 10 - 1 plaintiff’s conviction pursuant to Heck. Id. 2 Mrs. Henson was convicted for refusing to obey an officer under Scottsdale’s city 3 ordinance. The City of Scottsdale’s ordinance reads that “No person shall refuse to obey 4 a peace officer engaged in the discharge of his duty, or any other person authorized to aid 5 in quelling any riot, rout, or affray.” S.R.C. § 19-13. There is no indication that the 6 lawfulness of the officer or the reasonableness of his force is an essential element of the 7 City of Scottsdale’s ordinance, as it was in Smith.7 Therefore, the same logic does not 8 apply in this case, and a subsequent finding that an officer acted with excessive force 9 during the arrest would not necessarily implicate the validity of her conviction for failure 10 to obey. See Cabrera, 159 F.3d at 380–81; Smithart v. Towery, 79 F.3d 951, 953 (9th 11 Cir. 1996) (“To the extent that Smithart seeks to recover for defendants’ alleged use of 12 excessive force during the course of his arrest, his section 1983 action may proceed 13 despite the fact that his conviction has not been reversed, expunged, invalidated, or called 14 into question by the issuance of a writ of habeas corpus by a federal court.”). 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. Mrs. Henson’s Excessive Force Claims and Due Process Claims are Dismissed for Failure to State a Claim. Mrs. Henson alleges that Officer Glass utilized excessive force against her by grabbing her wrist, dragging her out of the vehicle, and denying her accessibility to her medication. However, the pro se parties in this case erroneously categorized this claim as an Eighth Amendment claim. Given that the parties are pro se, and that they do make other Fourth Amendment claims in the Complaint, the Court liberally construes this claim as a Fourth Amendment Claim. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); see also Graham v. Connor, 490 U.S. 386, 394–96 (1989) (“Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment.”). Additionally, Mrs. Henson alleges that Officer Glass continued to 7 Furthermore, pursuant to the police report, Mrs. Henson was arrested for failing to obey Officer Glass’s order to stay away from Salvatore Marsala’s home. (Doc. 15-1 at 4.) Therefore, whether Officer Glass did or did not grab her wrist, drag her out of the vehicle, or deprive her of her medication would not have any bearing on her conviction for failing to obey his earlier stay away order. - 11 - 1 deprive her of medication from the time she was arrested until her husband came to the 2 jail that evening. The Court construes this as a due process claim, as it involves pretrial 3 detention. See Bell, 441 U.S. at 535–36. 4 To allege an excessive force claim, a plaintiff must allege facts sufficient to 5 establish that “the officers used excessive force, i.e., force that was not ‘objectively 6 reasonable’ in light of the facts and circumstances confronting the officer.” Robinson v. 7 Solano Cty., 278 F.3d 1007, 1013 (9th Cir. 2002) (quoting Graham, 490 U.S. at 397). 8 Therefore, “gratuitous and completely unnecessary acts of violence by the police during a 9 seizure violate the Fourth Amendment.” Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 10 2001). However, “‘[n]ot every push or shove, even if it may later seem unnecessary in the 11 peace of a judge’s chambers,’ violates the Fourth Amendment.” Graham, 490 U.S. at 12 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Furthermore, 13 “Fourth Amendment jurisprudence has long recognized that the right to make an arrest or 14 investigatory stop necessarily carries with it the right to use some degree of physical 15 coercion or threat thereof to effect it.” Id. Mrs. Henson’s allegations acknowledge that 16 she did not immediately get out of the vehicle when asked, instead asking “why she had 17 to get out of the car.” (Doc. 1 at 7.) Pursuant to her allegations, Officer Glass told her 18 that she had to get out of the car because “he said so” prior to opening her vehicle’s door, 19 grabbing her wrist, and removing her from the car. (Id.) These facts are insufficient to 20 allege that Officer Glass exerted an unreasonable force on Mrs. Henson, as “[e]ven 21 passive resistance may support the use of some degree of governmental force if necessary 22 to attain compliance” with an officer’s order. Nelson v. City of Davis, 685 F.3d 867, 881 23 (9th Cir. 2012). The Complaint fails to allege any facts that indicate Officer Glass’s 24 actions resulted in anything more than a de minimis use of force on Mrs. Henson’s wrist; 25 she does not allege that she needed medical treatment, that there was bruising, or that 26 there was any subsequent trauma as a result of Officer Glass’s actions. Without more, a 27 de minimis use of force such as the use alleged under the circumstances does not state a 28 plausible claim for relief under the Fourth Amendment. Nakamura v. City of Hermosa - 12 - 1 Beach, No. CV06-06776 GW(SS), 2009 WL 1445400, at *11 (C.D. Cal. May 20, 2009) 2 (“Here, the amount of force was de minimis, particularly in view of the government’s 3 substantial interest in preventing Plaintiff from fleeing until Defendant Jones resolved the 4 stalking allegation. Accordingly, Plaintiff’s excessive force claim fails.”), aff’d, 372 F. 5 App’x 787 (9th Cir. 2010). Therefore, Mrs. Henson’s excessive force claim is dismissed. 6 “[U]nder the Due Process Clause, a detainee may not be punished prior to an 7 adjudication of guilt in accordance with due process of law.” Bell, 441 U.S. at 535. A 8 pretrial detainee may allege a cause of action under the Due Process Clause if the “jail 9 conditions or restrictions . . . ‘amount to punishment.’” Pierce v. Cty. of Orange, 526 10 F.3d 1190, 1205 (9th Cir. 2008) (quoting Bell, 441 U.S. 535–37). Furthermore, a pretrial 11 detainee must allege that the “prison officials acted with deliberate indifference.” Castro 12 v. Cty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016), cert. denied sub nom. Los 13 Angeles Cty., Cal. v. Castro, 137 S. Ct. 831 (2017). The case law on what constitutes 14 deliberate indifference under the Fourteenth Amendment is less than clear. Id. at 1068. 15 In Castro, the Ninth Circuit clarified that there are two inquiries, and thus two 16 states of mind, at issue when analyzing whether deliberate indifference is present in a 17 failure to protect due process claim. Id. The first asks whether the “officer’s conduct 18 with respect to the plaintiff was intentional.” Id. at 1070. As an example, the Castro 19 Court envisioned a scenario where “the claim relates to inadequate monitoring of the 20 cell” that results in injury to a pretrial detainee. Id. In such an instance, the relevant 21 “inquiry would be whether the officer chose the monitoring practices rather than, for 22 example, having just suffered an accident or sudden illness that rendered him 23 unconscious and thus unable to monitor the cell.” Id. The second state of mind inquiry is 24 “purely objective,” and asks whether the officer failed to “take reasonable available 25 measures to abate [substantial] risk, even though a reasonable officer in the 26 circumstances would have appreciated the high degree of risk involved—making the 27 consequences of the defendant’s conduct obvious.”8 Id. at 1071. This inquiry requires a 28 8 This inquiry notably “differs from the inquiry with respect to an Eighth - 13 - 1 claimant to allege “more than negligence but less than subjective intent—something akin 2 to reckless disregard.” Id. 3 Mrs. Henson alleges that she told Officer Glass that she needed her medication 4 prior to be taken to jail, but he refused to retrieve it from her vehicle and “just laughed” 5 when she told him she needed it. (Doc. 1 at 8.) This is sufficient to allege that Officer 6 Glass’s actions in denying her medication were intentional; that is, he intentionally 7 declined to retrieve her medication from the vehicle. However, from the face of the 8 allegations, it is not apparent that a reasonable officer would have “appreciated the high 9 degree of risk involved” in doing so. Castro, 833 F.3d at 1071. Mrs. Henson alleges that 10 she told Officer Glass only that she “needed” her medication, and did not mention what 11 could happen should she miss a dose. Nothing in the Complaint indicated that Officer 12 Glass knew what the medication was, such as if it was an over the counter pain 13 medication or some other drug Mrs. Henson could obtain at the jail. The Complaint does 14 not allege enough to indicate that Officer Glass acted with “something akin to reckless 15 disregard” by failing to retrieve the medication. Castro, 833 F.3d at 1071. Therefore, 16 Mrs. Henson’s claim against Officer Glass for failing to retrieve the medication is 17 dismissed. 18 To the extent that Mrs. Henson alleges a claim against the officers at the jail 19 during her detention, this claim is dismissed because the Complaint does not allege that 20 these officers acted with deliberate indifference. Mrs. Henson alleges that she missed her 21 nightly dose of medication, and that this led her to “becoming jittery” while at the jail. 22 (Id. 8–9.) The police at the jail then called the paramedics, who offered to take Mrs. 23 Henson to the hospital. (Id.) She refused. (Id.) The police at the jail then called her 24 husband. (Id.) Mr. Henson was instructed to bring medication to Mrs. Henson, and she 25 26 27 28 Amendment failure-to-protect claim,” where the deliberate indifference standard requires that 1) the deprivation alleged by the claimant must be objectively sufficiently serious and 2) the officer in question must have had a subjectively sufficient intent. Castro, 833 F.3d at 1070–71. - 14 - 1 was subsequently released. (Id.) From these facts, there is no indication that the officers 2 acted with deliberate indifference toward Mrs. Henson, under any applicable standard. 3 To the contrary, the Complaint indicates that the officers at the jail attempted to assist 4 Mrs. Henson throughout the incident. Accordingly, Mrs. Henson’s excessive force and 5 due process claims are dismissed with leave to amend. See Steckman, 143 F.3d at 1298. 6 F. 7 The Hensons filed a Motion to Strike Defendants’ Officer Glass and Judge 8 Hendrix’s Amended Motion to Dismiss, (Doc. 17). However, the Local Rules only 9 permit a motion to strike to be filed “if authorized by statute or rule, such as Federal 10 Rules of Civil Procedure 12(f), 26(g)(2) or 37(b)(2)(A)(iii), or if it seeks to strike any part 11 of a filing or submission on the ground that it is prohibited (or not authorized) by a 12 statute, rule or court order.” L.R. Civ. 7.2(m). The Hensons’ Motion to Strike appears to 13 be based on the merits of the Defendants’ substantive arguments rather than any of the 14 authorized justifications for a motion to strike, as outlined in the Local Rules.9 (See Doc. 15 17.) Therefore, the Motion to Strike is denied, (Doc. 17), and the Motion for Time to 16 Add Exhibits to the Motion to Strike, (Doc. 18), is also denied as moot. The Hensons’ Motion to Strike is Denied 17 CONCLUSION 18 For the foregoing reasons, the Court grants Defendants Karen Close, Natalie La 19 Porte, and Cyndi Negron’s Motion to Dismiss, (Doc. 16), and Defendants Jim Thompson, 20 Judge James Blake, and Seth Peterson’s Motion to Dismiss, (Doc. 33). Defendants Judge 21 Statia Hendrix and Officer Michael Glass’s Amended Motion to Dismiss, (Doc. 15), is 22 granted.. The Hensons’ Motion to Strike is denied, (Doc. 17), and the Motion for 23 Additional Time is denied as moot. (Doc. 18.) Finally, the Motion for Entry of Default, 24 (Doc. 40), is denied. 25 IT IS THEREFORE ORDERED that Defendants Karen Close, Natalie La Porte, 26 and Cyndi Negron’s Motion to Dismiss, (Doc. 16), is GRANTED. 27 /// 28 9 The Hensons did file a Response to the Defendants’ motions, and the Motion to Strike echoes the arguments made therein. (Doc. 27.) - 15 - 1 IT IS FURTHER ORDERED that Defendants Jim Thompson, Judge James 2 Blake, and Seth Peterson’s Motion to Dismiss, (Doc. 33), is GRANTED. The claims 3 against Defendant Judge James Blake are dismissed with prejudice, and the claims 4 against Defendant Jim Thompson and the City of Scottsdale are dismissed with leave to 5 amend. The claims against Defendant Seth Peterson are dismissed without prejudice. 6 IT IS FURTHER ORDERED that Defendants Judge Statia Hendrix and Officer 7 Michael Glass’s Amended Motion to Dismiss, (Doc. 15), is GRANTED. The claims 8 against Judge Hendrix are dismissed with prejudice. Mrs. Henson’s due process and 9 excessive force claims against Officer Glass and the other unnamed police officers are 10 dismissed with leave to amend. The remainder of Mrs. Henson’s claims against Officer 11 Glass, including her claims for unlawful arrest and unreasonable search and seizure, are 12 dismissed without prejudice. 13 14 IT IS FURTHER ORDERED that the Hensons’ Motion to Strike, (Doc. 17), is DENIED. 15 16 IT IS FURTHER ORDERED that the Motion for Additional Time, (Doc. 18), is DENIED as moot. 17 18 IT IS FURTHER ORDERED that the Motion for Entry of Default, (Doc. 40), is DENIED. 19 IT IS FURTHER ORDERED that Plaintiff Tanya Henson shall have 30 days 20 from the date of this Order to file an amended complaint with respect to her failure to 21 train, excessive force and due process claims against the City of Scottsdale, Officer 22 Glass, and the unnamed police officers. 23 IT IS FURTHER ORDRED that if an amended complaint is not timely filed on 24 these claims by September 5, 2017, the Clerk of Court is directed to terminate this action 25 without further notice. 26 /// 27 /// 28 /// - 16 - 1 IT IS FURTHER ORDERED that should Plaintiff Tanya Henson choose to file 2 an amended complaint, the Court requires that it comply with Local Rule of Civil 3 Procedure 7.1. 4 Dated this 2nd day of August, 2017. 5 6 7 Honorable G. Murray Snow United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 -

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