Carter v. City Of Fresno

Filing 13

ORDER granting 6 Motion to Dismiss with leave to amend signed by District Judge Anthony W. Ishii on 7/15/2013. ( Amended Complaint due by 8/16/2013). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEWIS CARTER, JR.,
Plaintiff,

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v.
CITY OF FRESNO
Defendant.

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ORDER GRANTING DEFENDANT‟S MOTION
TO DISMISS, MOTION TO STRIKE PORTIONS
OF THE COMPLAINT
(Docs. 6, 6-1)

INTRODUCTION

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Case No.: 1:13-cv-00290-AWI-MJS

Plaintiff Lewis Carter, Jr., proceeding pro se, has filed this civil rights action pursuant to title

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42 U.S.C. section 1983, alleging violation of his First and Fourth through Fourteenth Amendment

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rights under the United States Constitution, and violation of article I, sections 2, 5, 6, 7, 10, 14 and 21

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of the California Constitution. Defendant City of Fresno moves to dismiss and strike portions of the

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complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f). For reasons discussed

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below, Defendant‟s motion to dismiss shall be GRANTED WITH LEAVE TO AMEND. Accordingly,

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Defendant‟s motion to strike is moot.

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FACTS AND PROCEDURAL BACKGROUND

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Plaintiff alleges that his organization was planning to host an event. Compl. ¶ 6. While filing

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the paperwork, he encountered some unexpected fees. Id. Plaintiff believed that he was qualified for

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benefits under a program managed by the Fresno Police Department. Id. ¶¶ 5-6. Therefore, on July 28,
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2011, Plaintiff went to the police substation to inquire about the fees. Id. ¶¶ 4, 7. When Captain Garner

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responded that he could not waive any fee, Plaintiff asked to speak to someone above the captain. Id. ¶

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7. Captain Garner replied “it stops with him” and went back to his office. Id. Later, when Plaintiff

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continued his conversation with two other detectives in the hallway, Captain Garner demanded

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Plaintiff step outside. Id. Plaintiff claims that Captain Garner approached him aggressively and poked

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him in the chest seven or more times with two fingers, causing him to step back a few feet. Id. ¶ 7.

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Plaintiff also alleges Captain Garner made other hostile remarks such as “prove that you are not my

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enemy.” Id. ¶ 9.

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On February 27, 2013, Plaintiff initiated this civil rights action against City of Fresno. Plaintiff

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alleges the City is vicariously liable for the tortious acts of its employees. Id. ¶ 2. Specifically, Plaintiff

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alleges three counts:

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(1) battery and assault, in violation of the First, Ninth and Fourteenth Amendments of the
United States Constitution, and article I, section 21 of the California Constitution. Compl. ¶ 15;
(2) deprivation of his due process and equal protection rights, in violation of the Fifth, Sixth

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and Fourteenth Amendments, and article I, sections 2, 6, 10, 14 of the California Constitution. Compl.

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¶ 16; and

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(3) infringement of his associational rights, in violation of the First, Ninth and Fourteenth

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Amendments of the United States Constitution, and article I, sections 5, 21 of the California

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Constitution. Id. ¶¶ 17-20.

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Additionally, Plaintiff alleges other violations of the United States Constitution (Fourth
through Fourteenth Amendments) and the California Constitution (article I, section 7). Id. ¶¶ 13-14.
On March 5, 2013, Defendant filed motions to dismiss and strike portions of the complaint.
Docs. 6, 6-1.
Plaintiff has not filed an opposition.
LEGAL STANDARD
A. Motion to dismiss pursuant to Rule 12(b)(6)
A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure if it
appears beyond doubt that a plaintiff can prove no set of facts in support of the claim that would
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entitle her to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Balistreri v. Pacifica Police

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Department, 901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to dismiss, “[f]actual allegations

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must be enough to raise a right to relief above the speculative level, on the assumption that all

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allegations in the complaint are true even if doubtful in fact.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (internal citations omitted). A complaint must contain sufficient factual matter,

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accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (internal citations omitted). A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable for

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the alleged misconduct. Id. at 663.
When deciding a motion to dismiss, all allegations of material fact in the complaint are taken

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as true and construed in the light most favorable to the plaintiff. Western Mining Council v. Watt, 643

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F.2d 618, 624 (9th Cir.1981). However, the court is not required to accept conclusory allegations,

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allegations contradicted by exhibits attached to the complaint, matters not subject to judicial notice,

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unwarranted deductions of fact, or unreasonable inferences. Daniels-Hall v. National Educ. Ass‟n, 629

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F.3d 992, 998 (9th Cir. 2010). “A district court should grant leave to amend even if no request to

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amend the pleading was made, unless it determines that the pleading could not possibly be cured by

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the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). “Dismissal with

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prejudice and without leave to amend is not appropriate unless it is clear . . . the complaint could not

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be saved by amendment.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.

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2003).

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B. Motion to strike pursuant to Rule 12(f)

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Under Rule 12(f), a party may move to “strike from a pleading . . . any redundant, immaterial,

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impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). “The function of a 12(f) motion to strike is

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to avoid the expenditure of time and money that must arise from litigating spurious issues by

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dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973

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(9th Cir. 2010) (internal citations omitted). Motions to strike are disfavored and “should not be

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granted unless the matter to be stricken clearly could have no possible bearing on the subject

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of the litigation…” Contreras, ex rel. Contreras v. County of Glenn, 725 F. Supp. 2d 1157, 1159

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(E.D. Cal. 2010).

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DISCUSSION
1. The alleged facts fail to state a cause of action for battery and assault.

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Plaintiff‟s first count asserts claims for battery and assault against City of Fresno, alleging the

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City is vicariously liable for the conduct of Captain Garner. Plaintiff premises his claims on the First,

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Ninth and Fourteenth Amendments of the United States Constitution and article I, section 21 of the

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California Constitution. However, the claims fail because Plaintiff has not alleged facts sufficient to

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state a claim against Captain Garner or the City.
A. Complaint‟s allegations are insufficient to establish claims for battery and assault against

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Captain Garner.1

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As a preliminary matter, the Court notes that Captain Garner is not named as a defendant.

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Technically, then, Captain Garner cannot be held liable to Plaintiff. To the extent Plaintiff intends to

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assert these claims against the captain, the claims nonetheless fail because no excessive force and

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hence no battery or assault has been alleged.
“A battery is any intentional, unlawful and harmful contact by one person with the person of

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another.” Ashcraft v. King, 228 Cal. App. 3d 604, 611 (1991). The essence of battery is the harmful or

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offensive contact. Finley v. City of Oakland, 2006 WL 269950, at *13 (N.D. Cal. Feb. 2, 2006).

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Assault is the “unlawful attempt, coupled with a present ability, to commit a violent injury on the

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person of another.” Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007). The essence of assault is

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the apprehension of harmful or offensive contact. Finley, 2006 WL 269950, at *13.

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Assault and battery claims against a police officer require that unreasonable force be

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established. Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272-73 (1998). To show that police

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It does not matter whether Plaintiff asserts his claims under the state law or under § 1983. The same
standards apply to both state law assault and battery and § 1983 claims premised on constitutionally
prohibited excessive force. See, e.g., Susag v. City of Lake Forest, 94 Cal. App. 4th 1401, 1412–13
(2002) (“It appears unsound to distinguish between § 1983 and state law claims arising from the same
alleged misconduct”); Saman v. Robbins, 173 F.3d 1150, 1156–57 (9th Cir. 1999) (treating § 1983 and
state law battery claim as synonymous).
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officers used excessive force, in violation of the Fourth Amendment, a plaintiff must show that the

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officers' use of force was objectively unreasonable under the circumstances. Graham v. Connor, 490

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U.S. 386, 397 (1989). To adequately allege claims for battery and assault, Plaintiff must allege Captain

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Garner‟s use of force was objectively unreasonable under the circumstances.

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Problematically for Plaintiff, not every push or shove, even if it may later seem unnecessary in

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the peace of a judge's chambers, constitutes excessive force. Graham, 490 U.S. at 396-97. Saberi is

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instructive on this issue. In Saberi, the plaintiff tried to persuade the police officers not to arrest his

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intoxicated friend. Saberi v. City of Portland, 2006 WL 2707995, at *1 (D. Or. Sept. 18, 2006). When

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the plaintiff got too close to the officer, the officer poked the plaintiff in the chest with his fingers. Id.

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The plaintiff then brought a § 1983 claim against the officer for excessive force in violation of the

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Fourth Amendment. Id. at *3. The Saberi court held the officer‟s use of force, including poking the

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plaintiff and pushing him away, was reasonable under the circumstances. Id. at *4. In the current case,

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Plaintiff was trying to get a fee waiver from Captain Garner. When Captain Garner denied his request,

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Plaintiff refused to leave the police substation. Later, Plaintiff and Captain Garner continued to

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perpetuate their verbal dispute, and Captain Garner poked Plaintiff with two fingers. In both cases, the

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incident arose out of a verbal dispute. Neither case involved an arrest or a search when the officer

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poked the plaintiff. And neither plaintiff appeared to have been physically injured. Following Saberi,

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this Court does not find Captain Garner‟s poking constituted excessive force. Accordingly, Plaintiff

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fails to allege battery and assault against Captain Garner.

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B. Complaint‟s allegations are insufficient to trigger municipal liability for § 1983 claims.

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Plaintiff alleges numerous constitutional violations against the City under § 1983. The City

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moves to dismiss these claims. Because Plaintiff has not stated a claim against Captain Garner,

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Plaintiff cannot allege vicarious liability against the City for the captain‟s misconduct.

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Moreover, Plaintiff has failed to satisfy the requirements of Monell, which provides that a

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municipality cannot be liable under § 1983 on a respondeat superior theory. Monell v. Department of

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Social Services, 436 U.S. 658, 690-91 (1978). Under Monell, liability only attaches where the

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municipality itself causes the constitutional violation through a “policy or custom, whether made by its

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lawmakers or those whose edicts or acts may fairly be said to represent official policy.” Id. at 694.
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Municipal liability in a § 1983 case may only be premised upon: (1) an official policy; (2) a

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“longstanding practice or custom which constitutes the standard operating procedure of the local

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government entity;” (3) the act of an “official whose acts fairly represent official policy such that the

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challenged action constituted official policy;” or (4) where “an official with final policy-making

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authority delegated that authority to, or ratified the decision of, a subordinate.” Price v. Sery, 513 F.3d

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962, 966 (9th Cir. 2008).

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Here, Plaintiff alleges an individual officer of the Police Department acted in contravention of

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the law. He does not claim the constitutional deprivation is directly caused by a municipal policy or

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custom, nor does he claim that Captain Garner is an official with policy-making authority. Therefore,

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Plaintiff‟s allegations are insufficient to trigger municipal liability under Monell.

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C. Claims under the First, Ninth and Fourteenth Amendments must be dismissed.

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“The First Amendment affords protection to symbolic or expressive conduct as well as to

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actual speech.” Virginia v. Black, 538 U.S. 343, 358 (2003). To claim a First Amendment violation,

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the proper inquiry is “whether an official's acts would chill or silence a person of ordinary firmness

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from future First Amendment activities.” Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283,

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1300 (9th Cir. 1999). In the current case, Plaintiff may state a claim that Captain Garner‟s action

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constitutes retaliation for protected speech, or that his free speech rights were violated, but that is a

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different cause of action. Further, even if Plaintiff wishes to establish a First Amendment claim, he

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will have to provide the Court with more facts to determine the issue. The complaint‟s conclusory

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statements such as Plaintiff was treated like an enemy, or that he was “entitled to his feelings” are

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insufficient. Accordingly, Plaintiff‟s contention regarding the First Amendment violation is

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ungrounded.

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Plaintiff‟s Ninth Amendment claim is meritless. The Ninth Amendment provides that “[t]he

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enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others

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retained by the people.” U.S. Const., amend. IX. It does not provide a basis upon which plaintiff may

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impose liability under § 1983 because it does not independently secure any constitutional right.

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Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) (internal citations omitted);

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Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991). Accordingly, plaintiff's attempt to

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allege a violation of the Ninth Amendment fails as a matter of law.

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Plaintiff‟s Fourteenth Amendment claim likewise fails. The Supreme Court has held that

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plaintiffs cannot “double up” constitutional claims: where a claim can be analyzed under “an explicit

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textual source” or right in the Constitution, a court may not also assess the claim under another, “more

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generalized,” source. Graham, 490 U.S. at 394–95 (analyzing claim under Fourth Amendment but not

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under substantive due process); Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1029 (9th

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Cir.2002) (Ninth Amendment claim properly dismissed because plaintiffs may not “ „double up‟

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constitutional claims”); Hufford v. McEnaney, 249 F.3d 1142, 1151 (9th Cir.2001) (analyzing claim

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under First Amendment but not under substantive due process). Because the Fourth Amendment

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provides an explicit textual source of constitutional protection against the sort of physically intrusive

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conduct alleged in Plaintiff‟s battery and assault claims, the Fourth Amendment, and not the more

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general notion of “due process,” guides the analysis of the violations asserted here.

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D. Claims for battery and assault under the California Constitution must be dismissed.

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Plaintiff further alleges violations of his rights under article I, section 21 of the California

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Constitution. Compl. ¶ 15.

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Article I, section 21 is about marriage property: “Property owned before marriage or acquired

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during marriage by gift, will, or inheritance is separate property.” Cal. Const. art. I, § 21. The alleged

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facts do not support any legally cognizable claim under this section.

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Based on the foregoing, Plaintiff‟s claims for battery and assault shall be dismissed.

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2. Plaintiff’s second count regarding the alleged violation of due process and equal protection

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clauses must be dismissed.

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In paragraph 16 (count II), Plaintiff claims deprivation of his due process and equal protection

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rights, in violation of the Fifth, Sixth and Fourteenth Amendments, and article I, sections 2, 6, 10, 14

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of the California Constitution.

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The plaintiff cannot advance a Fifth Amendment due process claim against a local government
entity or its employees, because the due process and equal protection components of the Fifth

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Amendment apply only to the federal government. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th

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Cir. 2001).
The Sixth Amendment protects the right to trial in criminal prosecutions and is irrelevant to the

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current case. It reads: “the accused shall enjoy the right to a speedy and public trial, by an impartial

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jury of the State and district wherein the crime shall have been committed.” U.S. Const., amend. VI.

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Plaintiff‟s Fourteenth Amendment claims are conclusory and meritless. Plaintiff makes bare

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allegations that his due process and equal protection rights were violated. He does not provide any

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facts to support these assertions. Therefore, the Court must dismiss the claim. Plaintiff may amend the

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complaint if he wishes to do so.
The California Constitution, article I, section 2 provides protection for free speech. Section

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2(a) (the “Liberty of Speech Clause”) reads: “Every person may freely speak, write and publish his or

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her sentiments on all subjects…” Cal. Const. art. I, § 2(a). This section provides protection for

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speakers in some respects broader than provided by the First Amendment of the Federal Constitution.

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Kuba v. 1-A Agr. Ass'n, 387 F.3d 850, 856 (9th Cir. 2004). As discussed earlier, Plaintiff may state a

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cause of action for violation of his free speech rights. But Plaintiff has not provided sufficient

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allegations to show how his rights were violated. The Court must dismiss the claim with leave to

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amend.

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Article I, sections 6, 10 and 14 are irrelevant to the instant case. Section 6 is about prohibition

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against involuntary servitude. Cal. Const. art. I, § 6. Section 10 states: “Witnesses may not be

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unreasonably detained. A person may not be imprisoned in a civil action for debt or tort, or in

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peacetime for a militia fine.” Cal. Const. art. I, § 10. Section 14 relates to felony prosecution, and has

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no application here. Cal. Const. art. I, § 14 (“Felonies shall be prosecuted as provided by law.”)

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Based on the foregoing, Plaintiff‟s claims of deprivation of his due process and equal

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protection rights must be dismissed.

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3. Plaintiff’s third count regarding infringement of his associational rights must be dismissed.

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In paragraphs 17 through 20 (count III), Plaintiff claims infringement of his associational rights

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under the First, Ninth and Fourteenth Amendments, and article I, sections 5 and 21 of the California

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Constitution.
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The First Amendment affords protection for freedom of association. Williams v. Rhodes, 393

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U.S. 23, 30 (1968). Plaintiff could conceivably state a claim under the First Amendment, but has not

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alleged facts necessary to support such a claim. The Ninth Amendment and the Fourteenth

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Amendment are not applicable here because Plaintiff cannot “double up” constitutional claims.

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Graham, 490 U.S. at 394–95. Because the First Amendment covers Plaintiff‟s right to association

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claim, the First Amendment, not the Ninth and Fourteenth Amendments, should guide the analysis of

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the claim. Accordingly, Plaintiff‟s attempt to allege violations of the First, Ninth and Fourteenth

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Amendments fails.

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Article I, sections 5 and 21 of the California Constitution have no bearing on the instant case.

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Section 5 states: “The military is subordinate to civil power. A standing army may not be maintained

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in peacetime. Soldiers may not be quartered in any house in wartime except as prescribed by law, or in

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peacetime without the owner's consent.” Cal. Const. art. I, § 5. Section 21 relates to marriage property.

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Cal. Const. art. I, § 21.

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For these reasons, Plaintiff‟s claims regarding violation of his associational rights must be

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dismissed.

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4. Plaintiff’s allegations of other constitutional violations must be dismissed.

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In paragraphs 13 and 14, Plaintiff makes bare allegations that certain unspecified rights were

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violated under the Fourth through Fourteenth Amendments and article I, sections 2, 7, 10, 14 of the

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California Constitution. The Court, having reviewed the pleadings of record and all competent and

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admissible evidence submitted, finds Plaintiff has failed to allege facts sufficient to state a plausible

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claim to relief against Defendant. These allegations simply do not support liability under any theory,

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even engaging in inferences most favorable to Plaintiff.

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Plaintiff‟s claims of sundry constitutional violations must therefore be dismissed.

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ORDER

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Accordingly, the Court orders:

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Defendant‟s motion to dismiss is GRANTED IN ITS ENTIRETY WITH LEAVE TO
AMEND as to Defendant only.

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Plaintiff shall file an amended complaint within 30 days from this order‟s date of service.

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3.

Defendant‟s motion to strike is denied as moot.

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IT IS SO ORDERED.

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Dated: July 15, 2013

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SENIOR DISTRICT JUDGE
DEAC_Signature-END:

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