Harvey v. City of Fresno, et al.

Filing 41

ORDER GRANTING 33 Motion to Dismiss and 34 Motion to Dismiss; An Amended Complaint shall be filed within twenty (20) days, signed by Judge Oliver W. Wanger on 09/25/2009. (Martin, S)

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fresno County limits its challenge to the sufficiency of the complaint under Federal Rule 12(b)(6). (See Doc. 33, "Fresno County's Motion to Dismiss.") 1
1

DEMETRIUS L. HARVEY, Plaintiff, v. CITY OF FRESNO, et al., Defendants. I.

1:08-CV-01399-OWW-DLB MEMORANDUM DECISION AND ORDER RE: CITY OF FRESNO AND COUNTY OF FRESNO'S MOTIONS TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (Docs. 33, 34.)

INTRODUCTION

Before the court are two motions to dismiss or, in the alternative, for a more definite statement. One motion is brought

by Defendants City of Fresno, the Fresno Police Department, Chief Jerry Dyer, Officers Robert Gonzales, Jesus Cerda, Brent Willey, and Detectives Brian Valles and Brendan Rhames (the "City

defendants").

The other motion is brought by Defendant County of

Fresno (the "County defendant").1 Defendants seek dismissal of Plaintiff's 42 U.S.C. § 1983 and related claims on grounds that the claims fail to allege necessary elements. amended Plaintiff, appearing pro se, contends that his first satisfies requirements to plead necessary

complaint

elements of his claims.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. FACTUAL BACKGROUND.

The following facts are derived from Plaintiff's first amended complaint, ("FAC"), filed on June 3, 2009. (Doc. 31.)

Plaintiff, a 23 year-old African-American male, alleges that on January 7, 2007, he went over to a friend's apartment to help him move. (FAC ¶ 4, 22.) Around 8:00 p.m., Defendant Willey and

Officer Yeager received a dispatch of an alleged attack and robbery of Matt Billet, a Comcast Cable employee who was attacked while working on a friend's cable box. (FAC ¶ 23.) Billet called 911

and told the dispatcher that "D-Boy" was wearing an orange t-shirt after asking someone in the background what "D-Boy" was wearing. (FAC ¶ 23.) Defendant Willey interviewed Billet and noted that he

had a "slight" amount of redness on his right cheek that went away. According to the report, Defendant Willey did not photograph Billet because hewas unable to see any injuries. refused all emergency medical services. (FAC ¶ 24.) Billet

(FAC ¶ 24.)

Defendant

Willey and Officer Yeager went to the crime scene and did not find any physical evidence. At approximately (FAC ¶ 26.) (FAC ¶ 25.) 9:00 p.m., officers came to Rooter's

apartment.

Plaintiff went outside and gave his name

and was eventually placed under arrest by order of Defendant Cerda. (FAC ¶ 27.) He was handcuffed and searched by Defendant Willey and (FAC ¶ 27.) When Plaintiff arrived at

placed in the patrol car.

the police station, he was interrogated by Defendants Gonzales and Valles. (FAC ¶ 27.) Plaintiff waived his rights and denied (FAC ¶ 28.) Billet told Defendant Willey

committing a robbery.

that he had a conflict with Plaintiff several weeks before the 2

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robbery, but Plaintiff told both officers that he was not involved "in any type of physical disturbance with a white male." 29.) (FAC ¶

Plaintiff also requested to take a polygraph test, but the (FAC ¶ 30.) He told the officers that he (FAC

request was denied.

would go to jail and then go to trial to prove his innocence. ¶ 28.)

On January 9, 2007, Defendant County of Fresno filed a Felony Complaint against Plaintiff and four other individuals who were in the apartment on January 7, 2007, including Rooter. Plaintiff was charged with (1) robbery; (2) (FAC ¶ 32.) of a

possession

controlled substance while armed with a firearm; and (3) possession of marijuana for sale. (FAC ¶ 32.) Plaintiff entered a not guilty On March 13, 2007, Plaintiff

plea at his arraignment.

(FAC ¶ 34.)

appeared at the preliminary hearing. (FAC ¶ 35.) Billet testified and changed his story, explaining that he and a friend went to a friend's house to buy marijuana. (FAC ¶ 35.) He did not mention (FAC ¶

working for Comcast or working on his friend's cable box. 35.)

Prosecutor Esmeralda Garcia was present at the hearing and (FAC ¶ 36.) Defendants Willey

heard the inconsistent testimony. and Cerda also testified.

(FAC ¶ 37.)

Plaintiff was held to

answer to the robbery charge, while the drug charges were dropped. (FAC ¶ 38.) During the five day trial, Defendants Willey, Cerda, Rhames and Gonzales testified. (FAC ¶ 41.) Plaintiff testified on his

own behalf, having rejected another plea offer the day prior to trial. (FAC ¶ 42.) On July 6, 2007, a jury found Plaintiff not

guilty on all charges (second degree robbery, grand theft person and petty theft). (FAC ¶ 43.) 3

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Plaintiff was incarcerated from January 7, 2007, to July 6, 2007. (FAC ¶ 20.) During this time, he alleges that he endured

humiliation, suffered emotional distress, lost his job, and was separated from his pregnant girlfriend who eventually miscarried before her delivery date. Plaintiff alleges he (FAC ¶ 21.) was wrongfully accused, wrongfully

arrested, and wrongfully held in custody against his will for six months. All five Officers are alleged to have falsely detained,

arrested, and imprisoned Plaintiff, and held him against his will without probable cause. Plaintiff also alleges that the Officers

were motivated by racial prejudice because the victim is Caucasian, while the Plaintiff is African American. Chief of Police, Jerry Dyer, and the City of Fresno are sued because they allegedly did not effectively train, supervise, and supervise City police officers with regard to the proper

constitutional and statutory limits of the existence of their authority. Plaintiff also accuses them of initiating and promoting a meritless and malicious prosecution, which deprived Plaintiff of his constitutional rights. The County of Fresno is sued because "Plaintiff hopes by bringing this lawsuit ... the County of Fresno will review their patterns and practices, and customs pertaining to false arrests and imprisonments, wrongful detentions and malicious prosecutions in a way that this tragedy and civil will not of be repeated by violating (FAC 13.)

constitutional Plaintiff also

rights that the

individuals."

alleges

District

Attorney's

office,

specifically Deputy District Attorney Esmeralda Garcia, knew or should have know that the alleged victim, Billet, was not telling 4

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the truth.

(FAC 36.)

III.

PROCEDURAL BACKGROUND.

The original complaint was filed on September 19, 2008. (Doc. 1, Original Complaint.) Fresno County moved to dismiss Plaintiff's Original Complaint on March 17, 2009. (Doc. 17.) City Defendants (Doc. 19.)

moved to dismiss the complaint on April 3, 2009.

The hearing on Defendants' motions to dismiss, originally set for May 18, 2009, was continued to June 15, 2009 due to the press of court business. (Doc. 30.)

On June 6, 2009, Plaintiff filed his First Amended Complaint. The First Amended Complaint alleges nine claims for relief: 1. First Claim for Relief (All Defendants) Denial of

Constitutional Right Against Unreasonable Search and Seizure in violation of the Fourth and Fourteenth Amendments pursuant to 28 U.S.C. § 1983; 2. Second Claim for Relief (All Defendants) - False Arrest and Imprisonment; 3. Third Claim for Relief (all Defendants) Malicious

Prosecution; 4. Fourth Claim for Relief (all Defendants) - Intentional Infliction of Emotional Distress; 5. Fifth Claim for Relief (Officer Defendants) - Violation of California Civil Code § 52.1; 6. Sixth Claim for Relief (All Defendants) Vicarious

Liability; 7. Seventh Claim for Relief (City Defendants) - Negligent

Hiring, Retention, Training, Supervision, and Discipline. 5

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8.

Eighth Claim for Relief (Officer Defendants) - Violation

of California Civil Code § 52.7; and 9. Ninth Claim for Relief (Officer Defendants) - Negligence.

The FAC prays for injunctive relief enjoining City Defendants from authorizing, allowing, or ratifying the use of excessive force by its police officers; for a "public apology" from all Defendants; and for attorney's fees as provided by law. County and City Defendants separately moved to dismiss

Plaintiff's FAC on June 17, 2009.

(Docs. 33, 34.)

City Defendants

contend that the above causes of action fail to allege necessary elements or facts for Defendants' liability and that Chief Dyer, Officers Cerda, Willey, and Brendan Rhames, and Detectives Gonzales and Valles are redundantly named in their official capacities. Alternatively, defendants seek a more definite statement in that the allegations are vague and ambiguous. Fresno County argues that the claims arising out of the conduct of the DA's office should be dismissed as a matter of law as a County is not a proper defendant in a prosecutorial misconduct case. The County also moves to remove DA Elizabeth Egan from the

case because she was found to be "absolutely immune" pursuant to an Order filed on December 5, 2008. Plaintiff opposed the motions on August 27 and August 31, 2009. (Docs. 36, 38.) Plaintiff claims that his FAC is sufficient

to put "these officers on notice" and that the motions should be denied because "discovery process has not been done." 4:1-4:4.) (Doc. 36,

6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. 12(b)(6)

III.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss can be made and granted when the complaint fails "to state a claim upon which relief can be granted." Dismissal under Rule

12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be

"enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949,

173 L.Ed.2d 868 (2009) (internal quotation marks omitted). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal citation and quotation marks omitted). 7

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In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations." Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as

true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., --- F.3d ----, 2009 WL 1978730, at *3 (9th Cir. July 10, 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a motion to dismiss."). The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint

to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v.

U.S. Secret Service, 572 F.3d 962, 2009 WL 2052985, at *6 (9th Cir. July 16, 2009) (internal quotation marks omitted).

IV. A. City Defendants 1. 42 U.S.C. § 1983

DISCUSSION

Defendants City of Fresno, the Fresno Police Department, Chief Jerry Dyer, Officers Robert Gonzales, Jesus Cerda, Brent Willey, and Detectives Brian Valles and Brendan Rhames seek F.R.Civ.P. 12(b)(6) dismissal of plaintiffs' 42 U.S.C. § 1983 ("Section 1983") on grounds that the claims fail to allege necessary elements. 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. Official Capacity Suit In a § 1983 case, an "official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). "There is

no longer a need to bring official-capacity actions against local government officials, for under Monell, ..., local government units can be sued directly for damages and injunctive or declaratory relief." Graham, 473 U.S. at 167 n.14. Given that an official

capacity claim is treated as a claim against the local governmental entity, when a plaintiff sues an officer of a local governmental entity in his official capacity and also sues the local entity itself, the official capacity claim is redundant of the claim against the entity and the official capacity claim can be

dismissed.

See Center For Bio-Ethical Reform, Inc. v. L.A. County Megargee v. Luke v.

Sheriff Dep't, 533 F.3d 780, 799 (9th Cir. 2008);

Wittman, 550 F. Supp. 2d 1190, 1206 (E.D.Cal. 2008); Abbott, 954 F. Supp. 202, 204 (C.D. Cal. 1997).

Plaintiff has sued Chief Dyer, Officers Robert Gonzales, Jesus Cerda, and Brent Willey, and Detectives Brian Valles and Brendan Rhames in their official capacity and the City itself. The official capacity claims against Dyer and Officers Gonzales, Cerda, Willey, Valles, and Rhames are redundant of the claims against the City; therefore, the motion is GRANTED on the claims against Dyer, Gonzales, Cerda, Willey, Valles, and Rhames in their official capacities. Plaintiff's § 1983 claims against Chief Dyer, Officers Robert Gonzales, Jesus Cerda, and Brent Willey, and Detectives Brian 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Valles and Brendan Rhames in their official capacities is DISMISSED from the suit WITH PREJUDICE, it is redundant and spurious.

b. Municipal Departments Not Proper Defendants Plaintiff brings suit not only against the City of Fresno but also its municipal department, the City of Fresno Police

Department.

Municipal departments, here the City of Fresno Police Under Section 1983, a

Department, are not appropriate Defendants.

"person" acting under color of law may be sued for violations of the U.S. Constitution or federal laws. The term "persons" under §

1983 encompasses state and local officials sued in their individual capacities, private individuals and entities which acted under color of state law, and local governmental entities. Vance v.

County of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996). But "persons" do not include municipal departments. Id. "Naming

a municipal department as a defendant is not an appropriate means of pleading a § 1983 action against a municipality." Stump v. Gates, 777 F. Supp. 808, 816 (D. Colo. 1991). The City of Fresno

is the proper defendant in a § 1983 suit, not the City of Fresno Police Department, which is DISMISSED WITHOUT LEAVE TO AMEND.

c.

Monell Liability

Plaintiff brings a § 1983 constitutional violation claim against the City of Fresno under the Fourth and Fourteenth

Amendments.

Local governments are "persons" subject to suit for tort[s]" under 42 U.S.C. § 1983. Haugen v.

"constitutional

Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)) 10 "[O]ur holding ...

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that local governments can be sued under § 1983 necessarily decides that local government officials sued in their official capacities are `persons' under § 1983 in those cases in which, as here, a local government would be suable in its own name". U.S. at 691 n.55. Monell, 436

"Local governing bodies, therefore, can be sued

directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action or that a is alleged to be

unconstitutional, ordinance,

implements or

executes

policy

statement, and

regulation,

decision

officially

adopted

promulgated by that body's officers ... [or for] deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decision making channels." Although a local Id. at 690-91. can be held liable for its

government

official policies or customs, it will not be held liable for an employee's actions outside of the scope of these policies or customs. "[T]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, ... a municipality cannot be

held liable solely because it employs a tortfeasor. A municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691. The statute's "language plainly imposes

liability on a government that, under color of some official policy, `causes' an employee to violate another's constitutional rights." Id. at 692.

To prevail on a § 1983 claim against a local government under 11

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Monell,

a

plaintiff must

must

satisfy

a

three-part plaintiff's

test:

(1)

The

official(s)

have

violated

the

constitutional

rights; (2) The violation must be a part of policy or custom and may not be an isolated incident; and (3) A nexus must link the specific policy or custom to the plaintiff's injury. See Monell, 436 U.S. at 690-92. There are three ways to show a policy or custom of a municipality: (1) By showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) By showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision or (3) By showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). A municipal policy may be inferred from widespread practices or evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded. Id. Municipalities can be held liable "if its deliberate policy caused the constitutional violation alleged." 484. Prior to Iqbal, "a claim of municipal liability under section 1983 [was] sufficient to withstand a motion to dismiss even if the claim [was] based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice." Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. Blackenhorn, 485 F.3d at

2007). However, Iqbal has made clear that conclusory, "threadbare" allegations that merely recite the elements of a cause of action 12

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will not withstand a motion to dismiss. See Iqbal, 129 S.Ct. at 1949-50. Even under a Whitaker standard, Plaintiff's FAC is Plaintiff's FAC fails to even cite a custom or

insufficient.

policy of the City or any other indicia of Monell liability, other than a conclusory incantation that the City "knew" of an illegal policy. Plaintiff has not sufficiently alleged that, in depriving him of his constitutional rights, a City employee was acting pursuant to an official policy, custom or practice of the City of Fresno. There is a brief reference to an "illegal policy," but no

explanation as to what comprises the "illegal policy, pattern, practice, custom" referred to in the FAC: Despite Defendant CITY'S knowledge of this illegal policy, pattern, practice and custom, in that their supervisory and policy-making officers need to take effective steps to terminate such policies, patterns, practices, and customs; to effectively disciplined or otherwise properly supervised the individual officers who engage in the policy, pattern, practice and custom. (FAC, ¶ 45.)

As best understood, paragraph 45 of the FAC refers to the City's custom" "knowledge" concerning of the an illegal "policy, Attorney's pattern, decision practice, to file

District

criminal charges against him. Plaintiff's factual description ends there. If Plaintiff seeks to allege a claim against the City,

Plaintiff must identify what "policy" or "custom" he is challenging and how that policy or custom deprived him of his constitutional

13

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rights.2

See Galen v. County of Los Angeles, 477 F.3d 652, 667

(9th Cir. 2007) ("Generally, a municipality is liable under Monell only if a municipal policy or custom was the `moving force' behind the constitutional violation."). At this time, it is unclear what

"policy, pattern, practice, custom" Plaintiff refers to and how the City's purported "knowledge" of these policies deprived him of his constitutional rights. The FAC also alleges that Plaintiff was held "against his will without probable cause and without lawful process, and continued to incarcerate Plaintiff without probable cause and without lawful process." To the extent Plaintiff relies on these allegations to

support his Monell claim, he concedes that during his March 13, 2007 preliminary hearing, a Fresno Superior Court Judge found probable cause to exist as to hold him for trial on burglary charges against him. A specific finding of probable cause appears

to run contrary to Plaintiff's assertions that he was held "without probable cause." It is unclear how a specific probable cause

finding by a neutral magistrate supports Plaintiff's Monell claims against the City and, in fact, the finding appears to bar his claim under the fourth amendment.3

There must be "a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385 (1989). Furthermore, it is not enough to "merely [to] alleg[e] that the existing ... program ... represents a policy for which the city is responsible." Id. at 389. It appears from the record that there was a probable cause hearing that determined Plaintiff's arrest was supported by probable clause. Plaintiff's Fourth Amendment claim would then be barred by collateral estoppel. Allen v. McCurry, 449 U.S. 90, 95-96 (1980); see also Barry v. Fowler, 902 F.2d 770, 772-73 (9th 14
3

2

1 2 3 4 5 6 7 8 9 10

The allegations in the FAC do not identify the challenged policy/custom, explain how the policy/custom is deficient, explain how the policy/custom caused the plaintiff harm. motion to dismiss is GRANTED. complaint once. Leave to City Defendants'

Plaintiff has already amended his amend is GRANTED for one final

opportunity.

No further leave will be given.

d.

Chief Dyer, Officers Gonzales, Cerda, and Willey, and Detectives Valles and Rhames sues Defendants Chief Dyer, Officers Gonzales,

Plaintiff 11 12

Cerda, and Willey, and Detectives Valles and Rhames in their individual capacities for liability under § 1983. 13 liability under § 1983, Plaintiff must allege that the individual 14 defendants deprived plaintiff of a right secured by the United 15 States Constitution or a federal law. 16 "Section 1983 provides for liability against any person acting 17 under color of law who deprives another 'of any rights, privileges, 18 or immunities secured by the Constitution and laws' of the United 19 States." 20 (9th Cir. 2003) (quoting 42 U.S.C. § 1983). "The rights guaranteed 21 by section 1983 are 'liberally and beneficently construed.'" 22 23 24 25 26 27 28 Cir. 1990) (warrantless misdemeanor arrest supported by probable cause satisfies requirements of Fourth Amendment). Similarly, Plaintiff's third cause of action for malicious prosecution arising out of the January 7 arrest would be barred because plaintiff cannot rejudicate an essential element of that tort, i.e., lack of probable cause. See Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 871 (1989) (probable cause element of tort of malicious prosecution) 15 Id. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 To establish

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(quoting Dennis v. Higgins, 498 U.S. 439, 443 (1991)). Pursuant to § 1983, plaintiffs may bring a civil action for deprivation of rights under the following circumstances: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. To establish liability under § 1983, a plaintiff must show (1) that he was deprived of a right secured by the United States Constitution or a federal law and (2) that the deprivation was effected "under color of state law." 1023, 1028 (9th Cir. 2003). The City defendants argue that Plaintiff fails to allege sufficient facts to support a claim that City defendants personally participated in the alleged deprivation of a federal constitutional right. In opposition, Plaintiff cites that his allegations are Broam v. Bogan, 320 F.3d

sufficient to state a claim and that "discovery process has not been done to know each individual participation in this case ... [o]nce discovery begins, plaintiff can amend his complaint." (Doc. 36, 4:15-4:19.) Plaintiff has alleged one claim under § 1983. The claim

incorporates all of the previous "factual" allegations, and alleges 16

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that "[t]he defendants deprived the Plaintiff of his right to be free from unreasonable searches and seizures, as set forth and assured by the Fourth and Fourteenth Amendments of the United States Constitution." injuries such as Plaintiff then simply recites a list of his Severe emotional distress, d. Public

"c.

degradation, e. Loss of income." word, certain paragraphs.

Plaintiff also repeats, word for The

(See Doc 1., ¶50(c) and ¶50(d).)

FAC does not identify which defendants are named in the § 1983 claim or what constitutional deprivations (i.e., "facts") support his claims. Where plaintiff has identified a federal constitutional right, such as the Fourth and Fourteenth Amendments, plaintiff must allege who violated those rights, and how. For example, under the § 1983

claim, the complaint alleges "defendants deprived of his right to be free from unreasonable searches and seizures" and "defendants deprived Plaintiff of his right to be free from prosecution." Plaintiff must, without providing elaborate detail, allege who denied him of these rights, and how. Iqbal has made clear that conclusory, "threadbare" allegations that merely recite the elements of a cause of action will not withstand a motion to dismiss. See Iqbal, 129 S.Ct. at 1949-50.

If Plaintiff seeks to pursue this action, he must amend the § 1983 claim to identify the Defendants who violated his constitutional rights and how those rights were allegedly violated. leave will be given after this opportunity to amend. Finally, to the extent Plaintiff seeks to hold Chief Dyer liable for acts of his officers/detectives, Plaintiff is cautioned that "[a] supervisor is only liable for constitutional violations 17 No further

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of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. section 1983." 1989). There is no respondeat superior liability under Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. is cautioned that a failure to research

Plaintiff

applicable law and facts may result in sanctions. City Defendants motion to dismiss is GRANTED WITH LEAVE TO AMEND.4

2. State Law Claims a. California Tort Claims Act

City Defendants argue that Plaintiff's state law claims are barred by his failure to comply with the presentment requirements of the California Tort Claims Act. In particular, the City argues

that Plaintiff failed to file this lawsuit within six months after the notice of the rejection of the claims, as required by Section 946.6 of the California Government Code. The California Tort

Claims Act provides, in pertinent part, that "no suit for money or damages may be brought against a public entity on a cause of action [against a public entity or employee] until a written claim

therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board ...." Cal. Gov't Code § 945.4. If a claim is rejected, the

public entity must provide written notice, and if such notice is

In light of the numerous Defendants in this case and the nature of the arrest/detention alleged, it is possible that the first cause of action was so vague that fair notice of the claims against the defendants is not provided. 18

4

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provided in accordance with the statute, a plaintiff wishing to file a lawsuit must do so "not later than six months after the date such notice is personally delivered or deposited in the mail." Id. § 945.6(a)(1). Here, it is uncontested that Plaintiff's claims against the City of Fresno and the County of Fresno were denied, and that the notices of rejection were mailed to 360 South Helm Avenue, Fresno, California (the address provided in Plaintiff's government claims) on March 19, 2008 by the City of Fresno (Doc. 23, Ex. 3), and on March 25, 2008 by the Fresno County Board of Supervisors, (Doc. 23, Ex. 4). It is also uncontested that Plaintiff filed this lawsuit

on September 19, 2008. City Defendants argue that "pursuant to Government Code 946.6, before filing this civil action, plaintiff was required to first petition the appropriate court for an order relieving him from the provisions of the Government Code ... Defendants believe that no such petition has ever been filed." City Defendants essentially

contend that the U.S. District Court of California is not the "appropriate court" for purposes of § 946.6. After a review of the relevant case law, the district courts in California are split on the issue of whether federal district courts have "jurisdiction" under § 946.6. See Rahimi v. Nat'l R.R. Passenger Corp. (Amtrak), No. C 08-4712-MEJ, 2009 WL 1883756 (N.D. Cal. June 30, 2009) (summarizing the district court cases on point and holding that "the reasoning set forth in Perez to be the better approach ... [i]t would not further the remedial purpose of the statute to deny the petition, require Plaintiffs to re-file their petitions in Superior Court, file their tort causes of action in 19

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state court upon the granting of the petitions, and then to have the claims removed to the Court again and joined with the current case."); Cf. Hernandez v. McClanahan, 996 F.Supp. 975, 979 (N.D. Cal. 1998) (stating that "federal courts do not have jurisdiction over section 946.6 petitions"). While the number of decisions

align with City Defendant's position regarding jurisdiction under § 946.6., there is no clear pronouncement from the Ninth Circuit on the issue.5 Here, for purposes of the City's motion to dismiss, The

Plaintiff's allegations are sufficient to deny the motion.

denial is without prejudice regarding City's ability to raise a similar motion on a motion for summary judgment.

b.

False Arrest/Imprisonment (Count II), Malicious Prosecution (Count III), IIED (Count IV), California Civil Code section 52.1 (Count V), Vicarious Liability (Count VI), and Negligence (Counts VII, IX).

Plaintiff alleges causes of action against City Defendants for false arrest and imprisonment (Count II), malicious prosecution (Count III), intentional infliction of emotional distress (Count IV), and violation of California Civil Code section 52.1 (Count V). He also alleges a cause of action for "Vicarious Liability" against

There is also the parties' conflicting positions regarding whether or not Plaintiff's claims are considered "personal injury" claims under the California Tort Claims Act. Plaintiff argues that his claims are "civil wrong" claims and are not governed by the six-month deadline. City Defendants contend his action is essential a "personal injury" action, which is required to be filed within six months. 20

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants

City

of

Fresno

and

County

of

Fresno

pursuant

to

California Government Code section 815.2 (Count VI).

He also

alleges two "negligent" causes of action against Defendants City of Fresno and County of Fresno pursuant to California Government Code section 815.2 As described in Part(IV)(A)(1)(d), supra, the complaint must be dismissed for failure to state a claim. Here, the complaint

must be dismissed because it fails to put the individual defendants on notice of the claims asserted against them.6 Under Federal Rule

of Civil Procedure 8, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A pleading may not simply Id. While

allege a wrong has been committed and demand relief.

Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

Put another way, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. 1937, 1949 (quoting Bell A claim is

Atlantic Corp. v. Twombly, 550 U.S. 544, 570.).

plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is
6

For instance, Plaintiff supports his "false imprisonment" cause of action by stating "Plaintiff had not committed any crimes, and there was no reason upon defendant police officers could have reasonably believed the plaintiff had committed any crimes." (Compl. ¶ 59.) 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

liable for the misconduct alleged." complaint states a plausible

Id.

"Determining whether a relief [is] ... a

claim

for

context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

Plaintiff's state law causes of action, in total, fail to meet the rigors of Iqbal. In his opposition brief Plaintiff submits that his FAC is "sufficient to sue Defendant named officers ... Plaintiff has put these officers on notice that they are being sued." Plaintiff also states that he "needs discovery, which includes police documents and trial records ... Plaintiff will amend his complaint

accordingly, pending discovery."

However, in Iqbal, the Supreme

Court rejected a similar argument, finding that "a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process." Id. at 1953.

Whatever state law claims Plaintiff intends to allege against any defendant in connection with the events of January 7, 2007 through June 6, 2007, he must state facts that support the elements of each cause of action, as to each defendant. The City Defendants' motion to dismiss is GRANTED WITH LEAVE TO AMEND.

B. Fresno County Fresno County moves to dismiss Plaintiff's FAC for failure to state a claim. Specifically, Fresno County argues that it is not

subject to Monell liability in that its District Attorney acts as an arm of the State of California, not the County, to prosecute and investigate crimes. The County also argues that Plaintiff "does 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

not allege any other official County policy or custom that caused his alleged constitutional deprivation." As to Plaintiff's state

law causes of action, the County asserts that is immune under California Government Code sections 815.2(b) and 821.6.

1. District Attorney Elizabeth Egan The County first argues that Fresno County District Attorney Elizabeth Egan should be dismissed from this action because she is entitled to absolute immunity. Defendant Egan was previously

dismissed from this action on immunity grounds, however, Plaintiff repeated his allegations against Ms. Egan in his FAC. The December 5, 2008 order determined that Plaintiff was entitled to absolute immunity because she was sued in her capacity as District Attorney: Defendant Egan is entitled to absolute immunity. Prosecutors are absolutely immune from civil suits for damages under section 1983 which challenge activities related to the initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409 (1976). Determining whether a prosecutor's actions are immunized requires a functional analysis. The classification of the challenged acts, not the motivation underlying them, determines whether absolute immunity applies. Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986). The prosecutor's quasi-judicial functions, rather than administrative or investigative functions, are absolutely immune. Thus, even charges of malicious prosecution, falsification of evidence, coercion of perjured testimony and concealment of exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F. Supp. 710, 728 (N.D.Cal.1984). (Doc. 7, 4:8-4:21.)

Here,

Defendant

Egan

is

entitled

to

absolute

immunity.

Plaintiff does not make any specific allegations, in either the 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

original or FAC, that Defendant Egan was involved in any capacity other than her does chief not prosecutor's address The role. the In his 5, 2007 opposition, 2007 order is

Plaintiff dismissing

even

December 5,

Defendant

Egan.

December

Order

controlling.

Defendant Egan is not a proper defendant for the She is absolutely immune. The

section 1983 cause of action.

charge against her is DISMISSED WITHOUT LEAVE TO AMEND.

2.

Constitutional Allegations Against Fresno County

There are allegations in the FAC from which it may be inferred that Plaintiff is seeking to hold the County of Fresno liable for alleged constitutional violations by Fresno County District

Attorneys. To hold a local government liable for an official's conduct, a plaintiff must first establish that the official 1) had final policymaking authority "concerning the action alleged to have caused the particular constitutional or statutory violation at issue" and 2) was the policymaker for the local governing body for the purposes of the particular act. Alabama, 520 U.S. 781, 785 McMillian v. Monroe County, State law defines the

(1997).

official's "actual function ... in a particular area" for section 1983 purposes and this function must be evaluated to determine whether he or she acts for the state or county. Id. at 786. In

Pitts v. County of Kern, 17 Cal.4th 340 (1998), the California Supreme Court concluded that a district attorney acts on behalf of the state rather than the county in preparing to prosecute crimes and in training and developing policies for prosecutorial staff. The Ninth Circuit has also concluded that "under California 24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

law a county district attorney acts as a state official when deciding whether to prosecute an individual. County, 210 F.3d 1025, 1030 (9th Cir. 2000). Weiner v. San Diego Therefore, to the

extent that the FAC attempts to impose Section 1983 liability on the County of Fresno for decisions of the prosecutors, the FAC does not state a claim against the County upon which relief can be granted. Ninth Circuit authority also suggests that only acts falling outside a prosecutor's absolute immunity can give rise to

governmental entity liability under Monell.

See Ceballos v.

Garcetti, 361 F.3d 1168, 1183 (9th Cir. 2004)(using absolute immunity cases to guide analysis of whether a district attorney is acting in a prosecutorial capacity and therefore on behalf of the State); see also Botello v. Gammick, 413 F.3d at 979 (Dismissal of Monell claim against County was error when District Attorney acted as policymaker for the County when he performed administrative functions outside the scope of absolute prosecutorial immunity.). There are such allegations in the FAC. These claims are DISMISSED

WITH PREJUDICE AND WITHOUT LEAVE TO AMEND. Additionally, responsible for Plaintiff alleges that Fresno and County is

policies,

procedures,

customs,

practices

"implemented through its various agencies, agents, departments, and employees," and requests that the County review its policies. (Doc. 23, ¶¶ 6, 13.) Plaintiff has not identified any written

policies, regulations or ordinances to support his allegations, and has not established that Deputy DA Esmeralda Garcia, who is not a party to this lawsuit, had final policy-making authority on the issues that Plaintiff identifies. 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Here, as discussed in Part IV(A)(1)(c), supra, Plaintiff does not identify an official County policy or custom followed by either the Fresno City Police Department, Fresno County District Attorneys (who are not named in this action), or any other employee of the County of Fresno. Plaintiff's Monell claim is also fatal in the

absence of an underlying constitutional deprivation or injury. See, e.g., Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 957 (9th Cir.2008) ("Because there is no constitutional violation, there can be no municipal liability.") At this time, it is unclear

how Plaintiff's allegations against Fresno County relate to any alleged unlawful conduct, whether by the Fresno City Police

Department or any other municipal department employee.

It is also

unclear how Fresno County imposed on Plaintiff's constitutional rights. These claims are DISMISSED WITHOUT PREJUDICE. Plaintiff is

given one additional opportunity to amend his complaint.

3.

Remaining State Law Allegations Against Fresno County

The same conclusion applies to the extent that the FAC seeks to impose state law tort liability for malicious prosecution against Fresno County. Here, although Plaintiff does not

specifically name the individual prosecutors as defendants, he mentions them - specifically, Deputy DA Esmeralda Garcia - in his complaint. Because Deputy DA Garcia is immune from liability

pursuant to California Government Code § 821.6,7 the County and the

Section 821.6 states: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, 26

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

District Attorney are also immune. California Government Code § Section 815.2(b) provides: (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. Because individual district attorneys are immune from See

liability, immunity applies to the public entity as well.

Poppell v. City of San Diego, 149 F.3d 951, 970 (9th Cir. 1998) ("The City of San Diego cannot be held liable for such acts [of negligence] where its employees are immune from liability."). The California Supreme Court has held that § 821.6 "grants immunity to any `public employee' for damages arising from

malicious prosecution." See Asgari v. City of Los Angeles, 15 Cal. 4th 744, 756 (1997). Courts have repeatedly held that § 821.6

immunity is not limited to claims for malicious prosecution, "although that is a principal use of the statute." 200 Cal. App. 3d at 1436. With respect to Plaintiff's remaining state law claims, County Defendant has not cited any case holding such claims to be subject to § 821.6. law However, the FAC does not raise the prospect of state against the County to the "plausible" level. See Kemmerer,

liability

Twombly, 550 U.S. at 570.

Absent such allegations, the County's

motion to dismiss is GRANTED WITH LEAVE TO AMEND.8

even if he acts maliciously and without probable cause." Plaintiff's third cause of action for malicious prosecution against the County is DISMISSED WITHOUT LEAVE TO AMEND. 27
8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In the Ninth Circuit, pro se litigants are not entitled to attorney's fees without express statutory authorization. Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 815-16 (9th Cir.1985) Plaintiff has not identified such statutory support. 28
9

C.

Attorney's Fees Defendants move to strike Plaintiff's request for attorney's

fees

from

his

FAC.

Defendants

argue

that

"Plaintiff

is

representing himself in this action and thus, he should not be allowed to proceed with the impression he can potentially recover attorney's fees." Plaintiff counters that "his request is based on seeking counsel ... this request will be in place when an attorney takes over the case." Plaintiff's argument is not well-taken. Although Section 1988 provides for "reasonable attorney's fees" in any action to enforce § 1983, pro se civil litigants are not entitled to attorney's fees.9 See Kay v. Ehrler, 499 U.S. 432, 435-38 (1991); see also

Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 816 (9th Cir. 1985). Should the plaintiff retain an attorney for further

litigation related to his complaint, he may amend his complaint at that time. Plaintiff cites no case law in support of his

"potential for counsel" argument. Defendants' motion to strike is GRANTED as to Plaintiff's request for attorney's fees.

D.

Motion For A More Definite Statement City Defendants move for a more definite statement under Fed.

R. Civ. Proc. 12(e).

The relevant question here is whether the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

complaint gives City Defendants sufficient notice of the claims. "A court will deny a motion for a more definite statement" where the complaint is specific enough to apprise the defendant of the substance of the claim being asserted." Neveau v. City of Fresno, A motion for a more

392 F.Supp.2d 1159, 1169 (E.D.Cal. 2005).

definite statement is proper only where the complaint is "so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith or without prejudice to himself. Id.

A Rule 12(e) motion for a more definite statement must be considered in light of the liberal pleading standards set forth in Fed.R.Civ.P. 8(a)(2). See, e.g., Bureerong v. Uvawas, 922 F.Supp.

1450, 1461 (C.D.Cal. 1996) (citing Sagan v. Apple Computer, Inc., 874 F.Supp. 1072, 1077 (C.D. Cal. 1994) ("Motions for a more definite statement are viewed with disfavor and are rarely granted because of the minimal pleading requirements of the Federal

Rules.")). A motion for a more definite statement is proper only where the complaint is "so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith or without prejudice to himself." Cellars v. Pacific Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D.Cal. 1999) (internal quotations and citation omitted). Whether to grant a Rule 12(e) motion for a more

definite statement lies within the discretion of the district court. See, e.g., San Bernardino Public Employees Ass'n v. Stout,

946 F.Supp. 790, 804 (C.D.Cal. 1996). Here, any issues concerning sufficiently pled causes of action have been addressed in the 12(b)(6) analysis above. City

Defendants motion for more definite statement is DENIED.

29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

V.

CONCLUSION

For the foregoing reasons: 1. Plaintiff's § 1983 claims against Chief Dyer, Officers Robert Gonzales, Jesus Cerda, and Brent Willey, and Detectives Brian Valles and Brendan Rhames in their official capacities is DISMISSED from the suit WITH PREJUDICE. 2. The City of Fresno is the proper defendant in a § 1983 suit, not the City of Fresno Police Department, which is DISMISSED WITHOUT LEAVE TO AMEND. 3. Plaintiff's Monell claim against the City of Fresno is DISMISSED WITH LEAVE TO AMEND. 4. Plaintiff's § 1983 claim against Defendants Chief Dyer,

Officers Gonzales, Cerda, and Willey, and Detectives Valles and Rhames in their individual capacities is DISMISSED WITH LEAVE TO AMEND. 5. Plaintiff's related state law causes of action against City Defendants are DISMISSED WITH LEAVE TO AMEND. 6. Defendant Fresno County District Attorney Elizabeth Egan is not a proper defendant for Plaintiff's § 1983 cause of action. She is absolutely immune. WITHOUT LEAVE TO AMEND. 7. Plaintiff's allegations against the County of Fresno for alleged constitutional violations by Fresno County District The charge against her is DISMISSED

Attorneys are DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND. 8. Plaintiff's Monell claim against the County of Fresno is DISMISSED WITH LEAVE TO AMEND. 9. Plaintiff's related state law causes of action against County Defendants are DISMISSED WITH LEAVE TO AMEND. 30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

10. Plaintiff's request for attorney's fees is DISMISSED.

Any amended complaint shall be filed within twenty (20) days following electronic service of this order. IT IS SO ORDERED. Dated: 9i274f September 25, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

31