Anthony Tucker v. City of Santa Monica et al

Filing 7

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Margaret A. Nagle (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANTHONY TUCKER,

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Plaintiff,

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v.
CITY OF SANTA MONICA, et al.,
Defendants.

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NO. CV 12-5367-SVW (MAN)
MEMORANDUM AND ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND

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On June 25, 2012, plaintiff, proceeding pro se and in forma

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pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983

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(“Complaint”).

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Monica (“City”); Timothy Jackman, former Chief of Santa Monica Police

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Department (“SMPD”); SMPD officers Louis Marioni, Scott McGowen, and

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Michael Chun; CSO Carlton Palmer; Terry White, described by plaintiff

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as City Attorney1; and Does 1 through 10.

Plaintiff sued the following defendants:

City of Santa

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The Court takes judicial notice that Terry White actually is
the
Chief
Deputy
City
Attorney,
Criminal
Division.
See
http://www.smgov.net.

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Congress has mandated that courts perform an initial screening of

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in forma pauperis civil actions.

This Court “shall” dismiss such an

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action “at any time,” including before service of process, if it

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concludes that the complaint is frivolous, fails to state a claim upon

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which relief can be granted, or seeks relief against a defendant who is

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immune from the requested relief.

28 U.S.C. § 1915(e)(2).

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In screening a pro se civil rights complaint, the Court must

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construe its allegations liberally and must afford the plaintiff the
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

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benefit of any doubt.

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2012). The standard applicable on screening is the standard for failure

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to state a claim under Rule 12(b)(6) of the Federal Rules of Civil

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Procedure.

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allegations, but it must contain sufficient factual matter to state a

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claim for relief that is plausible on its face.

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U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007).

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complaint is dismissed, a pro se litigant must be given leave to amend

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unless it is absolutely clear that the deficiencies of the complaint

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cannot be cured by amendment. Karim-Panahi, 839 F.2d 621, 623 (9th Cir.

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1988); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

Id.

The complaint need not contain detailed factual

Ashcroft v. Iqbal, 556

If a

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ALLEGATIONS OF THE COMPLAINT

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On Thursday, May 5, 2011, sometime between 9:30 and 10:00 p.m.,

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plaintiff was riding his bicycle on the Third Street Promenade in Santa

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Monica, when CSO Palmer jumped in front of him and shouted, “What the

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[obscenity] do you think you are doing!”
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(Complaint ¶ 7.)

Plaintiff

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turned his bicycle around and walked towards Santa Monica Boulevard.

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(Id.) Officers Marioni, Chun, and McGowen shouted “Stop,” and plaintiff

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complied.

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When plaintiff asked whether he was being arrested and on what charges,

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the officers said he was not being arrested but would be if he did not

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sit down.

(Id.)

The officers handcuffed plaintiff and searched his

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backpack.

(Id.)

They placed plaintiff and his bicycle in a patrol

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vehicle and drove him to the police station, without telling him that

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he was under arrest.

(Id.)

The officers ordered plaintiff to sit down. (Id.)

(Id. at ¶¶ 7, 8.)

Plaintiff contends that the

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officers had no warrant for his arrest and knew that he had not

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committed any crime or public offense.

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the incident resulted in his “first and only criminal booking.”

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at ¶ 37.)

(Id. at ¶ 31.)

He asserts that
(Id.

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At the police station, defendants Marioni and McGowen subjected

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plaintiff to “multiple physical abuses,” which included “being thrown

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to

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deliberately and sadistically cause pain and suffering, and [being]

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thrown to the floor of a cell, uncuffed and threatened with a taser.”

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(Complaint ¶ 8.)

the

floor

in

handcuffs,

having

arms

and

hands

wrenched

to

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In custody, plaintiff repeatedly demanded and was refused access

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to a telephone.

(Complaint ¶ 9.)

He was not arraigned and remained in

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custody until 9:45 p.m. on May 6, 2011, when he was released after

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posting $10,000 bail. (Id.) He was directed to appear in court and did

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so, but he discovered that no criminal charges had been filed.

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The same day, plaintiff returned to the police station to file a formal

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complaint and was seen by the duty watch commander, who persuaded him
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(Id.)

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not to do so.

(Id.)

On November 7, 2011, plaintiff filed a tort claim

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for damages, which was rejected on December 20, 2011.

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30.)

There was also an internal investigation.

(Id. at ¶¶ 9,

(Id. at ¶ 9.)

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Plaintiff asserts the following federal claims:

(1) unreasonable

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seizure, due process deprivations, and conspiracy against all defendants

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(Claim One); and (2) unlawful custom and practice against Jackman and

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the City (Claim Two).

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state law claims: (1) assault and battery against the City, Marioni,

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McGowen, Chun, Palmer, and Does 5 through 10 (Claim Three); (2) false

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imprisonment against the City, Marioni, McGowen, Chun, Palmer, and Does

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1 through 10 (Claim Four); (3) intentional infliction of emotional

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distress against all defendants (Claim Five); (4) negligence against all

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defendants (Claim Six); (5) negligent employment/retention/supervision

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against Jackman (Claim Seven); (6) violation of California Civil Code

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§ 52.1 against all defendants (Claim Eight); (7) conversion against all

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defendants (Claim Nine); and (8) trespass to chattels against all

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defendants (Claim Ten).

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(Complaint at 17.)

(Complaint ¶¶ 11-24.)

(Id. at ¶¶ 25-59.)

He asserts the following

Plaintiff seeks damages.

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DISCUSSION

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I.

PLAINTIFF FAILS TO STATE A CLAIM UNDER THE FIRST AMENDMENT OR THE
DUE PROCESS CLAUSE.

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Plaintiff asserts claims under the First, Fourth, and Fourteenth

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Amendments.

(Complaint ¶¶ 1, 12.)

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basis for a First Amendment claim under any cognizable legal theory.
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The Complaint contains no factual

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See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990)(claims can be dismissed for lack of cognizable legal theory or

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insufficient

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plaintiff asserted a factual basis for a due process violation. Because

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plaintiff was not arraigned, his claims challenging his arrest and

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detention arise under the Fourth Amendment, not the Due Process Clause.

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See

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1996)(holding

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constitutional limitations on the treatment of an arrestee detained

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without a warrant up until the time such arrestee is released or found

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to be legally in custody based upon probable cause for arrest”).

Pierce

facts

v.

supporting

Multnomah
that

“the

cognizable

legal

County,

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F.3d

Fourth

Amendment

theory).

Nor

has

1032,

1043

(9th

Cir.

sets

the

applicable

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At this early stage of the action, the Court finds that plaintiff’s

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Fourth Amendment claims against defendants Palmer, Marioni, Chun, and

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McGowen

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Plaintiff’s First and Fourteenth Amendment claims, however, must be

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dismissed.

based

on

his

arrest

and

detention

withstand

screening.

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II.

PLAINTIFF FAILS TO STATE A SECTION 1983 CLAIM AGAINST DEFENDANT
WHITE.

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Plaintiff names as defendant Terry White, the Chief Deputy City

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Attorney, Criminal Division.

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that plaintiff be held in custody without arraignment, although “the

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courts were open and available,” to punish him for past litigation

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against

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“Plaintiff was intentionally prevented from appearing before a judge at

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the direction of Defendant City Attorney Terry White.”).

SMPD

officers.

Plaintiff contends that White directed

(Complaint

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¶

9;

see

also

id.

at

¶

31:

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To state a claim under Section 1983, a plaintiff must allege that

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the defendant, acting under color of state law, deprived him of a right

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secured by the Constitution or laws of the United States.

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Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55 (1988); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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is not liable under Section 1983 unless the facts establish either the

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defendant’s personal involvement in the constitutional deprivation, or

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a causal connection between the defendant’s wrongful conduct and the

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alleged constitutional deprivation.

See West v.

An individual defendant

See Hansen v. Black, 885 F.2d 642,

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646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir.

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1978).

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Here, plaintiff does not contend that defendant White had anything

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to do with his arrest and detention. His claims against defendant White

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arise solely out of the failure to arraign him. Specifically, plaintiff

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complains that he was held all day on Friday, May 6, 2011 without being

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arraigned.

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In general, arraignment must take place within 48 hours of a

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warrantless arrest.

California Penal Code § 825; County of Riverside

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v. McLaughlin, 500 U.S. 44, 52-56, 111 S. Ct. 1661, 1668-70 (1991)

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(Fourth Amendment requires judicial determination of probable cause for

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detention, which may be combined with arraignment, to be held within 48

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hours of arrest).

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released from custody 24 hours after his arrest and was never criminally

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charged. (Complaint ¶¶ 7, 9.) Thus, plaintiff was released well before

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the expiration of the 48-hour limit for pre-arraignment detention.

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United States v. Guthrie, 265 Fed. Appx. 478, 479 (9th Cir., Jan. 23,

According to the Complaint, however, plaintiff was

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See

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2008)(27-hour pre-arraignment detention presumptively constitutional).

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Moreover, he was never arraigned, because no criminal proceedings were

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initiated against him.

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White liable for the decision not to file charges, which is, in any

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event, protected by the doctrine of prosecutorial immunity.

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v. Pachtman, 424 U.S. 409, 430-31, 96 S. Ct. 984, 995 (1976); Buckley

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v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 2615 (1993).

Presumably, plaintiff is not seeking to hold

See Imbler

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Plaintiff, therefore, has not alleged any constitutional violation

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-- or indeed, any wrongful act -- committed by defendant White.

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Complaint

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Plaintiff’s

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dismissed.

contains
claims

no

factual

against

basis

defendant

for

holding

White,

White

therefore,

The

liable.
must

be

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IV.

PLAINTIFF FAILS TO STATE A SECTION 1983 CLAIM AGAINST THE CITY OR
OFFICIAL CAPACITY CLAIMS AGAINST INDIVIDUAL DEFENDANTS.

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Plaintiff has named the City as a defendant.

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In addition,

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plaintiff has asserted official capacity claims against defendants

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Jackman, Marioni, McGowen, and Chun.

(Complaint at 1 & ¶ 2.)

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To allege a Section 1983 claim against an individual defendant, a

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plaintiff need only allege a constitutional deprivation inflicted on him

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by

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municipality such as the City, more is needed.

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a constitutional deprivation and a policy, custom, or practice of the

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City that was the “moving force” of the constitutional deprivation.

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Monell v. Department of Social Services, 436 U.S. 658, 694-95, 98 S. Ct.

that

defendant.

To

allege

a

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Section

1983

claim

against

a

Plaintiff must allege

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2018, 2037-38 (1978); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d

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950, 957 (9th Cir. 2008); Galen v. County of Los Angeles, 477 F.3d 652,

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667 (9th Cir. 2007).

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A municipality “may not be sued under § 1983 for an injury

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inflicted solely by its employees or agents.

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execution of a government’s policy or custom, whether made by its

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lawmakers or by those whose edicts or acts may fairly be said to

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represent official policy, inflicts the injury that the government as

Instead, it is when

Monell, 436 U.S. at 694, 98 S.

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an entity is responsible under § 1983.”

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Ct. at 2037-38. Thus, a local governmental entity is not liable for the

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acts

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unconstitutional implements or executes a policy statement, ordinance,

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regulation, or decision officially adopted or promulgated by that body’s

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officers” or unless the alleged constitutional deprivation was “visited

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pursuant to a governmental ‘custom’ even though such a custom has not

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received formal approval through the body’s official decisionmaking

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channels.”

of

its

employees

unless

“the

action

that

is

alleged

to

be

Id. at 690-91, 98 S. Ct. at 2035-36.

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Here, plaintiff contends that the City has maintained policies that

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require and encourage the deprivation of constitutional rights and the

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employment and retention of police officers and jailers who have a

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“propensity for brutality, dishonesty, bigotry and numerous other

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serious abuses.” (Complaint ¶ 21.) He alleges that the City, the SMPD,

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and Jackman:

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Chun, and Palmer had committed “similar acts of criminality, dishonesty

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and abuse” against other members of the public; refused to adequately

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investigate misconduct and discipline SMPD officers; retaliated against

knew before this incident that officers Marioni, McGowen,

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officers who reported abuse by other officers; did not adequately train

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or

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groundless criminal charges to insulate the City from civil liability

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and the practice of reducing criminal charges in return for releasing

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SMPD officials from civil liability; encouraged a conspiracy of silence;

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engaged

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impeaching

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encouraged an atmosphere of lawlessness.

supervise

in

SMPD

the

officers;

practice

evidence

to

of

condoned

refusing

prosecutors

the

to

and

practice

of

prosecuting

provide

exculpatory

and

criminal

defendants;

and

(Id. at ¶ 9.)

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These allegations are too conclusory to support plaintiff’s Monell

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claims against the City.

See Iqbal, 556 U.S. at 680-81, 129 S. Ct. at

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1951 (requiring specific allegations regarding the policy at issue in

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a civil rights case).

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of criminal charges and handling of evidence have nothing to do with

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what happened to plaintiff, who was never criminally charged. Plaintiff

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must describe policies or customs that were the “moving force” of the

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alleged constitutional deprivations inflicted on him; there must be a

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direct causal link between the policies and the alleged constitutional

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deprivations. See Villegas, 541 F.3d at 957. Plaintiff, therefore, has

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not alleged a plausible Monell claim against the City.

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U.S. at 678, 129 S. Ct. at 1949; Twombly, 550 U.S. at 556, 127 S. Ct.

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at 1965.

Moreover, policies pertaining to the prosecution

See Iqbal, 556

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As for plaintiff’s official capacity claims against defendants

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Jackman, Marioni, McGowen, and Chun, an official capacity claim for

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damages

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governmental entity of which the official is an agent. Monell, 436 U.S.

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at 690 n.55, 98 S. Ct. at 2035 n.55.

is

merely

another

way

of

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pleading

a

claim

against

the

Thus, plaintiff’s official

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capacity claims are, in effect, claims against the City, and fail for

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the same reasons.

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Accordingly, plaintiff’s Monell claims against the City and his

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official capacity claims against defendants Jackman, Marioni, McGowen,

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and Chun must be dismissed.

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III. PLAINTIFF FAILS TO STATE A SECTION 1983 CLAIM AGAINST DEFENDANT
JACKMAN.

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Plaintiff names as defendant Timothy Jackman, who was the SMPD

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Chief of Police at the time of the events giving rise to plaintiff’s

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claims.

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Supervisory personnel generally are not liable under Section 1983

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on any theory of respondeat superior or vicarious liability in the

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absence of a state law imposing such liability.

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County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991). A supervisory

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official may be liable under Section 1983 only if he or she was

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personally involved in the constitutional deprivation, or if there was

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a sufficient causal connection between the supervisor’s wrongful conduct

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and the constitutional violation.

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(9th Cir. 2011), cert. denied, __ U.S. __, 132 S. Ct. 2101 (2012);

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Hansen, 885 F.2d at 646.

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overt personal participation if the supervisory official implements a

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policy

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constitutional violation.

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can be held liable for:

so

deficient

See, e.g., Redman v.

Starr v. Baca, 652 F.3d 1202, 1207

Supervisory liability also may exist without

that

it

is

the

moving

Redman, 942 F.2d at 1446.

force

behind

the

Thus, supervisors

(1) their own culpable action or inaction in
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the

training,

supervision,

or

control

of

subordinates;

(2)

their

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acquiescence in the complained-of constitutional deprivation; and (3)

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conduct that showed a reckless or callous indifference to the rights of

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others.

Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000).

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Plaintiff does not allege that Jackman had any personal involvement

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in his arrest and detention.

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is responsible for the customs and polices described above alleged in

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connection with plaintiff’s Monell claims.
plaintiff’s

Rather, plaintiff contends that Jackman

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However,

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implemented by Jackman are largely conclusory, and plaintiff does not

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list any specific incidents of misconduct by SMPD officers of which

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Jackman

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conclusory allegations in Paragraph 22, some of them patently inapposite

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to this action, and the detailed factual allegations deemed sufficient

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in Starr.3

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allegedly implemented by Jackman and the harm to him; indeed, as

was

given

allegations

(See Complaint ¶¶ 22, 23.)

notice.2

regarding

There

is

no

the

policies

resemblance

allegedly

between

the

Nor has plaintiff shown a causal link between the policies

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2

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See Henry A. v. Willden, 678 F.3d 991 (9th Cir. 2012)(foster
children’s allegations that supervisors of foster care system had
knowledge of reports documenting systemic failures of foster care were
insufficient to state a claim absent allegations that supervisors had
personal knowledge of specific constitutional violations leading to
injuries or had direct responsibility for training or supervising
caseworkers); contrast Starr, 652 F.3d at 1208-10 (allegations
describing specific incidents of inmate attacks caused by deputy
misconduct as well as numerous instances of notice provided to Sheriff
Baca were sufficient to state a claim against him).
3

See Hydrick v. Hunter, 669 F.3d 937, 941 (9th Cir. 2012)
(finding supervisory liability allegations insufficient and explaining
that the decision in Starr depended on the “detailed factual
allegations” of the complaint); Ramirez v. County of Los Angeles, 2012
WL 2574826, at *4 (C.D. Cal., July 3, 2012)(dismissing supervisory
liability claim when plaintiff did not allege specific past incidents
of excessive force of which Sheriff Baca was given notice).
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previously discussed in connection with plaintiff’s Monell claim, the

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alleged policies pertaining to the prosecution of criminal charges are

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plainly inapplicable to the facts of this case.

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Finally, although plaintiff alleges that Jackman “turned a blind

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eye” to proof of the officers’ wrongdoing in connection with the

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investigation of plaintiff’s citizen’s complaint (Complaint ¶ 10),

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allegations that a supervisor ratified an officer’s conduct through the

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handling of a subsequent investigation cannot show that the supervisor
See Jones v. County of Sacramento, 2010

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caused the officer’s conduct.

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WL 2843409, *6-7 (E.D. Cal., July 20, 2010)(discussing applicable case

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law

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ratification” of an officer’s conduct by failing to sustain a citizen’s

14

complaint “can never be sufficient to show that the supervisor caused

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the officer’s conduct,” especially after Iqbal).

and

concluding

that

a

supervisor’s

“isolated

and

subsequent

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Accordingly, plaintiff’s allegations are insufficient to state a

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plausible

supervisory

liability

claim

against

defendant

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Jackman.

Plaintiff’s claims against him, therefore, must be dismissed.

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CONCLUSION

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For the foregoing reasons, the Complaint is dismissed with leave

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to amend.

If plaintiff wishes to pursue this action, he is granted

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thirty (30) days from the date of this Memorandum and Order within which

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to file a First Amended Complaint that attempts to cure the defects in

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the First Amended Complaint described herein.

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Complaint, if any, shall be complete in itself.
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The First Amended
It shall not refer in

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any manner to the original Complaint.

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3

Plaintiff is explicitly cautioned that failure to timely file a

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First

Amended

Complaint,

or

failure

to

correct

the

deficiencies

5

described herein, may result in a recommendation that this action be

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dismissed pursuant to Fed. R. Civ. P. 41(b).

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DATED: July 20, 2012

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MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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