Forte v. Hughes et al
Filing
15
FINDINGS and RECOMMENDATIONS recommending that lawsuit proceed following dismissal of certain claims and defendants. These findings and recommendations are referred to Judge Lawrence J. O'Neill with objections due within fourteen days of service. Order signed by Magistrate Judge Sandra M. Snyder on 6/27/2014. (Rooney, M)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
EUGENE FORTE,
10
Case No. 1:13-CV-01980-LJO-SMS
Plaintiff,
11
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT LAWSUIT
PROCEED FOLLOWING DISMISSAL OF
CERTAIN CLAIMS AND DEFENDANTS
v.
12
13
PATTERSON PD CHIEF TORI HUGHES,
et al.,
14
Defendants.
15
(Doc. 13)
16
SCREENING ORDER
17
18
On December 3, 2013, Plaintiff Eugene E. Forte, proceeding pro se and in forma pauperis in
19
this action under 42 U.S.C. § 1983, alleged excessive force in executing an arrest and eighteen other
20
counts against defendants City of Patterson, Patterson Police Department, Stanislaus County
21
22
Sheriff's Department, Police Chief Tori Hughes, Deputy Chris Schwartz, and Stanislaus County
Sheriff Adam Christianson. On January 10, 2014, the Court issued its first screening order,
23
24
25
requiring Plaintiff, within thirty days, to either file an amended complaint or to notify the Court of
his willingness to proceed only on those claims found to be cognizable. Plaintiff filed the first
26
amended complaint on February 11, 2014.
27
///
28
///
1
Screening of the first amended complaint in accordance with the requirements of 28 U.S.C. §
1
2
1915 reveals that despite amendment, the first amended complaint includes certain claims that are
3
not cognizable. Accordingly, this order recommends dismissal of noncognizable claims.
4
I.
5
6
7
Screening Requirement
The court has inherent power to control its docket and the disposition of its cases with
economy of time and effort for both the court and the parties. Landis v. North American Co., 299
U.S. 248, 254-55 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). In cases in which
8
9
the plaintiff is proceeding in forma pauperis, the Court must screen the complaint and dismiss it at
10
any time that the Court concludes that the action is frivolous or malicious, fails to state a claim on
11
which relief may be granted, or seeks monetary relief from a defendant who is immune from such
12
relief. 28 U.S.C. § 1915(e)(2). "Notwithstanding any filing fee, or portion thereof, that may have
13
14
been paid, the court shall dismiss the case at any time if the court determines that . . . the action or
appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
15
In screening a complaint, the Court does not rule on the merits of the proposed action.
16
17
Instead, it evaluates whether the complaint sets forth facts sufficient to render each claim cognizable.
18
The screening process does not substitute for any subsequent Rule 12(b)(6) motion that a defendant
19
may elect to bring later. Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1120 (S.D. Cal. 2007).
20
II.
21
22
23
Pleading Standards
Federal Rule of Civil Procedure 8(a) provides:
A pleading that states a claim for relief must contain:
(1)
a short and plain statement of the grounds for the court‟s
jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support;
(2)
a short and plain statement of the claim showing the pleader is
entitled to relief; and
(3)
a demand for the relief sought, which may include relief in the
alternative or different types of relief.
24
25
26
27
28
2
1
2
“Each allegation must be simple, concise, and direct.” F.R.Civ.P. 8(d).
“Rule 8(a)‟s simplified pleading standard applies to all civil actions, with limited
3
exceptions,” none of which applies here. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002).
4
Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim showing
5
that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a). “Such a statement must simply give
6
7
the defendant fair notice of what the plaintiff‟s claim is and the grounds upon which it rests.”
Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but “[t]hreadbare
8
9
recitals of the elements of the cause of action, supported by mere conclusory statements, do not
10
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550
11
U.S. 544, 555 (2007). “Plaintiff must set forth sufficient factual matter accepted as true, to „state a
12
claim that is plausible on its face.‟” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555.
13
14
While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678
Although accepted as true, “[f]actual allegations must be [sufficient] to raise a right to relief
15
16
17
above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). A plaintiff must set
forth “the grounds of his entitlement to relief,” which “requires more than labels and conclusions,
18
and a formulaic recitation of the elements of a cause of action.” Id. at 555-56 (internal quotation
19
marks and citations omitted). To adequately state a claim against a defendant, the complaint must set
20
forth the claim's legal and factual basis.
21
In dismissing the original complaint with leave to amend, this Court advised Plaintiff that he
22
needed to allege facts to support many of his allegations. A fact is "[s]omething that actually exists;
23
24
an aspect of reality." Black's Law Dictionary at 628 (8th ed. 2004). It is "[a]n actual or alleged event
25
or circumstance, as distinguished from its legal effect, consequence, or interpretation." Id. In
26
preparing the first amended complaint, Plaintiff has generally failed to provide the additional factual
27
information requested by the Court, instead augmenting the original complaint with additional legal
28
conclusions, personal interpretation, opinions, and arguments. In the absence of any factual basis,
3
1
many of these opinions and interpretations are frivolous, fanciful, malicious, or apparently intended
2
to harass one or more defendants. The Court is required to dismiss such claims. 28 U.S.C. §
3
1915(d)(2).
4
5
6
The first amended complaint also needlessly conflates claims relating to Officer Schwartz's
arresting Plaintiff with Plaintiff's claims against officials in Merced County and the City of Los
Banos.1 The first amended complaint includes no facts linking those claims to the arrest that gave
7
rise to the cognizable claims in this action. In the complete absence of any factual evidence
8
9
connecting an officer's use of excessive force in a Stanislaus County arrest with the unrelated
10
disputes in Merced County, claims that the incidents are somehow related are merely speculative and
11
cannot go forward.
12
13
14
In addition, Plaintiff's claims against Merced County and City of Los Banos officials are
before this Court in other cases. Plaintiff is warned that unnecessary repetition of the same claims in
multiple cases is abusive of the judicial process. AFlagrant abuse of the judicial process cannot be
15
16
tolerated because it enables one person to preempt the use of judicial time that properly could be
17
used to consider the meritorious claims of other litigants.@ DeLong v. Hennessey, 912 F.2d 1144,
18
1148 (9th Cir. 1990).
19
III.
20
21
Factual Allegations
Plaintiff publishes the Badger Flats Gazette, a blog that alleges corruption of judicial
officers, public officials, and police officers. In 2003, Plaintiff ran for governor of California on a
22
platform of exposing the corruption of political and judicial officials. The first amended complaint
23
24
25
alleges details of Plaintiff's long history of poor relations with officials in the City of Los Banos and
in Merced County, California, where he and his family formerly lived. Believing that continued
26
27
1
28
In addition to this case, Plaintiff has filed two cases against various officials and officers in Merced County and the
City of Los Banos: Forte v. County of Merced (1:11-cv-00318-AWI-BAM) and Forte v. Jones (1:11-cv-00718-AWIBAM).
4
1
2
residence in Merced County was not safe, Plaintiff and his family moved in July 2010 to the City of
Patterson, Stanislaus County, California.
Since 1998, the Stanislaus County Sheriff's Department has contracted to provide police
3
4
services to Patterson. www.scsdonline.com/patterson/ (June 18, 2014). Defendant Tori Hughes is
5
the Patterson Police Services Chief. Defendant Hughes supervises all employees of Patterson Police
6
Services, including Defendant Officer Schwartz and Officer Watkins, who is not named as a
7
defendant in this action. Defendant Adam Christianson, the Stanislaus County Sheriff, supervises
8
9
Defendant Hughes.
After Plaintiff and his family moved to Patterson, he and his wife met with Defendant
10
11
Hughes to recount their difficulties in Merced County, including a series of communications that
12
they believed to have been death threats. Plaintiff and his wife expressed concern that someone
13
14
aggrieved by Plaintiff's activities in Merced County would seek further retribution against Plaintiff
or a family member. Defendant Hughes told Plaintiff that "if law enforcement in the adjoining
15
16
17
Merced County was not addressing law enforcement issues against themselves that Plaintiff could go
to Stanislaus County as plaintiff was doing to report it." Doc. 13 at 5 ¶ 24.
18
On May 4, 2011, Plaintiff reported to a Patterson Police officer2 named Randy Watkins that
19
he had been falsely arrested and was experiencing retaliation after he reported corruption involving
20
Merced County District Attorney Larry Morse, Los Banos Mayor Tommy Jones, and Merced
21
22
County Counsel James Fancher. On July 7, 2011, Officer Watkins reported the results of his
investigation, which corroborated Plaintiff's allegations.3 Throughout 2012, Plaintiff contacted
23
24
Defendant Hughes and Officer Watkins on many occasions.
On December 3, 2012, Plaintiff unsuccessfully attempted to call the FBI in Fresno twelve
25
26
times. Each time, the receptionist hung up the phone when Plaintiff stated that he was recording the
27
2
28
The complaint identifies Patterson law enforcement officers as both Patterson police officers and a Stanislaus County
Sheriff's deputies. For clarity and brevity, these findings and recommendations will refer to the officers as police
officers. No conclusion as to the officer's legal status is intended.
3
The first amended complaint does not explain the nature and purpose of Officer Watkins' investigation.
5
1
2
3
call. Plaintiff then sought to file a complaint with the Patterson Police to report the FBI's
misconduct.
When officers4 arrived at Plaintiff's home, they refused to agree to Plaintiff's recording their
4
conversation with him, even when Plaintiff explained that recording was necessary to protect
5
Plaintiff from any future allegations that he had threatened law enforcement officers. Plaintiff also
6
told the officers that he had been trying to reach Watkins and Defendant Hughes, but that neither had
7
responded. Disclaiming any ability to compel a response from Watkins or Hughes, the officers
8
9
10
11
12
13
14
walked away from Plaintiff's front porch, laughing and mocking Plaintiff. When Plaintiff attempted
to call them back, one office waved bye-bye like a child but did not turn back.
While driving with his wife that evening, Plaintiff saw a Patterson police car in front of him.
Knowing that Watkins frequently worked nights, Plaintiff flashed his headlights for the officer to
stop. Defendant Schwartz then pulled over to speak to Plaintiff at the curb. Plaintiff audio-recorded
Schwartz, and Mrs. Forte video-recorded the meeting on her cell phone. Schwartz was aware that he
15
16
17
was being recorded.
Plaintiff asked Schwartz if he knew where Watkins was that night. Schwartz replied
18
"brashly" and "in a rude tone" that he did not know if Watkins was on duty, but asked if he could
19
help. Plaintiff explained that he had been leaving messages for Watkins but that Watkins had not
20
called him back. Schwartz said that since September 10, 2012, Watkins had been given specific
21
instructions for dealing with any police report Forte made concerning Merced County. As a result,
22
Schwartz could not help Plaintiff, who would have to speak directly with Watkins. The complaint
23
24
25
continues:
60. Deputy Schwartz said in an insulting, combative tone that he was "aware of
all the nonsense[."] The exchange continued with Schwartz becoming more
26
27
28
4
The first amended complaint does not identify the responding officers, but alleges that they were identified in
the incident report.
6
1
2
3
4
5
6
7
insulting and mocking with Schwartz getting back into his patrol car while
[Plaintiff] was still asking for Schwartz to explain what "nonsense" was he aware
of.
61. Schwartz then, in a rude, mocking, and insulting tone of voice, told [Plaintiff]
that he should understand why Chief Hughes and Deputy Watkins had not called
back was not because they were not doing their job but because it was not a law
enforcement matter.
62. Schwartz told [Plaintiff] in a ridiculing tone that the FBI was not going to
help him, the DA was not going to help him and they weren't going to help him.
Schwartz operating under instructions of Hughes to humiliate, ignore and
trivialize [Plaintiff].
8
9
10
63. Schwartz told [Plaintiff] with prodding hyperbole that if [Plaintiff's] problem
was with law enforcement, why did he keep coming back to them? He was
communicating to [Plaintiff] that [Plaintiff] was not going to receive any
response, help, or action from law enforcement so [Plaintiff] may as well give up.
11
12
13
Doc. 13 at 12, ¶¶ 60, 61, 62, and 63.
Plaintiff responded, "What would you want me to do? Get a gun and shoot you guys? I am
14
certainly not going to do that!" Doc. 13 at 12 ¶ 64. At that remark, Schwartz swung open his door,
15
knocking Plaintiff backward. Plaintiff backed up six to ten feet and twice asked Schwartz why he
16
had done that. Schwartz did not respond but grabbed for the recorder in Plaintiff's hand. Plaintiff
17
had already handed it off to his wife. Schwartz pushed and pulled Plaintiff, who did not resist but
18
attempted to avoid being injured.
19
20
Although Schwartz did not tell Plaintiff that he was under arrest, Schwartz told Plaintiff to
21
put his hands behind his back to be handcuffed. Schwartz did not respond to Plaintiff's questions
22
about why he was being arrested. Schwartz intentionally did not lock the handcuffs.
23
24
25
When Plaintiff had been handcuffed, Schwartz pushed Plaintiff face first into the ground and
jumped on Plaintiff's back. Plaintiff continued to ask why he was being arrested. While slamming
his elbow into Plaintiff's head and pushing his knee harder into Plaintiff's back, Schwartz finally
26
responded that Plaintiff could not threaten to shoot police officers. Then, "[Plaintiff] was taken up
27
28
off the ground and while standing in a neutral position, Schwartz then attacked [Plaintiff] by legging
7
1
2
sweeping [sic] [Plaintiff] backward so that he landed on his back." Doc. 13 at 41, ¶ 73. During the
course of the altercation, Watkins arrived, and an ambulance was called for Plaintiff.
Schwartz drove Plaintiff to Modesto Hospital, then to the county jail. Instead of taking
3
4
Plaintiff directly to the hospital, Schwartz drove back and forth past the hospital and around the
5
block several times, using a road with large dips to jar [Plaintiff] and cause the unlocked handcuffs
6
to tighten and painfully injure Plaintiff's wrists.
7
Throughout the trip, Schwartz verbally abused, harassed, and humiliated Plaintiff by saying
8
9
things such as "You need to understand, we're the boss. We're in charge"; "You and your family
10
should move up in the mountains away from everybody, get out of Patterson"; and "Your kids
11
wouldn't be so proud of you now seeing you in handcuffs." Doc. 13 at 11 ¶¶ 76 and 77. Schwartz
12
also told Plaintiff that, while Schwartz would be going home to a nice dinner, Plaintiff would be
13
14
eating bologna sandwiches and drinking sour milk, and that Plaintiff would be in jail for a long time
unless he was independently wealthy. Schwartz's statements were intended to "provoke, demean,
15
16
17
humiliate, harass and cause emotional distress." Doc. 13 at 15, ¶ 80. According to the complaint,
they worked as intended: Plaintiff feared that Schwartz would stop the car and beat him.
Upon arriving at the hospital, Schwartz allowed Plaintiff to trail behind him "seeming to
18
19
taunt [Plaintiff] into 'making a break for it' so that Schwartz could have a reason to shoot [Plaintiff],
20
or tase him." Doc. 13 at 14 ¶ 78. Plaintiff suffered lumps on his head, lacerations on his arms and
21
legs, back pain, and elevated blood pressure. His buttocks were bruised. He had a sharp pain in his
22
neck, and pain and paralysis from his left elbow to his left thumb.
23
Upon arrival at the county jail, Schwartz told Plaintiff he had been arrested for "felony
24
25
stupid." Doc. 1 at 11 ¶ 62. Schwartz patted down Plaintiff, found the recorder that had been running
26
for the entire trip to the jail, and removed its batteries.
27
///
28
///
8
At booking, Plaintiff learned he had been arrested for threatening a public officer in violation
1
2
of California Penal Code § 71. Plaintiff was later released on $20,000 bail. On February 5, 2013,
3
Stanislaus County District Attorney Birgit Fladager elected not to prosecute the case.
4
IV.
5
6
Counts One and Two: Excessive Force in Course of Arrest5
Plaintiff contends that by intentionally beating Plaintiff, all Defendants violated his Fourth
Amendment rights. Excessive force in the course of arrest implicates the Fourth Amendment to the
7
U.S. Constitution, which governs citizens' rights in the course of searches and seizures. As the facts
8
9
10
allege, however, all Defendants did not beat Plaintiff—only the arresting officer, Defendant
Schwartz, did so.
Under the Fourth Amendment, made applicable to the states by the Fourteenth Amendment,
11
12
13
14
people are to be secure against unreasonable searches and seizures. Maryland v. Pringle, 540 U.S.
366, 369 (2003); Mapp v. Ohio, 367 U.S. 643 (1961). An officer may arrest a person without a
warrant only if there is probable cause to believe that the person has committed or is committing an
15
16
17
offense. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). Each case is determined on its specific
facts and circumstances. Ornelas v. United States, 517 U.S. 690, 695-96 (1996). Those facts and
18
circumstances will determine the Fourth Amendment's reach in a particular case. Terry v. Ohio, 392
19
U.S. 1, 29 (1968).
20
21
A seizure occurs when the government ends a person's freedom of movement by
intentionally applied means. Scott v. Harris, 550 U.S. 372, 381 (2007); Brower v. County of Inyo,
22
489 U.S. 593, 596-97 (1989). A claim of excessive force in the course of a seizure is properly
23
24
analyzed under the Fourth Amendment's "objective reasonableness" standard. Scott, 550 U.S. at
25
381; Graham v. Connor, 490 U.S. 386, 388 (1989). This means that the Court must consider
26
whether the officer's actions were objectively reasonable in light of the facts and circumstances of
27
28
5
The first amended complaint omits counts three and four, which the Court found to be redundant in the original
complaint.
9
1
the arrest, without regard to their underlying intent or motivation. Scott, 550 U.S. at 381; Graham,
2
490 U.S. at 387. The reasonableness of the type of force used is evaluated from the perspective of
3
an officer on the scene and must include allowance for the fact that police officers are often forced to
4
make a split-second determination of the amount of force necessary to make the arrest. Graham,
5
490 U.S. at 387.
6
The first amended complaint alleges facts sufficient to state a cognizable claim that
7
Defendant Schwartz used excessive force in arresting Plaintiff on December 3, 2012.
8
In addition to Defendant Schwartz's actions, however, the first amended complaint alleges
9
10
that Defendants Christianson and Hughes had vicarious liability for Schwartz's actions.6 This
11
portion of count one is not cognizable.
12
13
14
Section 1983 plainly requires an actual connection or link between each defendant=s actions
and the harm allegedly done to the plaintiff. See Monell v. Department of Social Services of City of
New York, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). AA person >subjects= another
15
16
to the deprivation of a constitutional right, within the meaning of '1983, if he does an affirmative
17
act, participates in another=s affirmative act or omits to perform an act which he is legally required to
18
do that causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743
19
(9th Cir. 1978). A plaintiff can establish each defendant=s Arequisite causal connection@ either by
20
detailing that defendant=s direct, personal participation in an act or omission, or by demonstrating
21
that the defendant knowingly set in motion a series of acts by others that the defendant knew or
22
reasonably should have known would cause the others to inflict constitutional injury on Plaintiff. A
23
24
defendant cannot be liable under ' 1983 unless an affirmative link or connection exists between that
25
defendant=s actions and the claimed injury to Plaintiff. May v. Enomoto, 633 F.2d 164, 167 n. 3 (9th
26
Cir. 1980); Johnson, 588 F.2d at 743.
27
28
6
Defendants' vicarious liability is more fully addressed in Section VII, infra, which addresses the blanket claims of
supervisory liability alleged in counts eleven and twelve.
10
1
No facts alleged in the first amended complaint create the requisite causal connection to link
2
Hughes or Christianson to the beating coincident with Schwartz's arrest of Plaintiff. The first
3
amended complaint does not even try to allege a direct link. Instead, the first amended complaint
4
alleges that by refusing to respond to Plaintiff's complaints regarding crimes committed against him
5
in Merced County by various Merced County officials, Defendants Hughes and Christianson
6
intended to harass, intimidate, and coerce Plaintiff into not reporting the Merced County crimes.
7
Even assuming those allegations to be true, discouraging Plaintiff from reporting crimes in Merced
8
9
County to police in a Stanislaus County municipality is not tantamount to physically assaulting
10
Plaintiff in the course of an arrest for threatening a police officer. The allegations are particularly
11
far-fetched since Plaintiff could gain little by complaining of crimes in Merced County to the
12
Patterson Police, who have no jurisdiction over crimes committed in Merced County. See Cal. Penal
13
14
Code § 830.1 (limiting the jurisdiction of county and municipal police officers).
Nor does the first amended complaint set forth any evidence that Defendants Christianson,
15
16
17
Hughes, and Schwartz conspired to exercise excessive force against Plaintiff in the event he was
arrested. Such a conspiracy seems highly improbable, particularly since Defendant Schwartz did not
18
seek out Plaintiff to arrest him. Plaintiff flagged Schwartz down, and ultimately, Plaintiff uttered the
19
threat that triggered his arrest.
20
21
The reasonableness of Detective Schwartz's response to Plaintiff's threatening statement is
the only cognizable question set forth in claims one and two. Count one is not cognizable as to any
22
other Defendant.
23
24
The difference between counts one and two is that count one requests compensatory damages
25
and count two requests exemplary damages. "A plaintiff who establishes liability for deprivations of
26
constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages
27
for all injuries suffered as a consequence of those deprivations." Borunda v. Richmond, 885 F.2d
28
1384, 1389 (9th Cir. 1988). Compensatory damages include the plaintiff's actual losses, mental
11
1
anguish and humiliation, impairment of reputation, and out-of-pocket losses. Id.; Knudson v. City of
2
Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987); Chalmers v. City of Los Angeles, 762 F.2d 753,
3
760-61 (9th Cir. 1985). "[D]amages in § 1983 actions are not to be assessed on the basis of the
4
abstract 'value' or 'importance' of the infringed constitutional right." Sloman v. Tadlock, 21 F.3d
5
1462, 1472 (9th Cir. 1994).
6
Punitive (exemplary) damages are also available under § 1983. See Pacific Mut. Life Ins. Co.
7
v. Haslip, 499 U.S. 1, 17 (1991); Kentucky v. Graham, 473 U.S. 159, 167 n. 13 (1985); Dang v.
8
9
Cross, 422 F.3d 800, 807 (9th Cir. 2005); Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993);
10
Cinevision Corp. v. City of Burbank, 745 F.2d 560, 577 n. 21 (9th Cir. 1984). Punitive damages are
11
awarded in the jury's discretion. See Smith v. Wade, 461 U.S. 30, 54 (1983); Woods v. Graphic
12
Communications, 925 F.2d 1195, 1206 (9th Cir. 1991).
13
14
Both counts one and two state cognizable claims against Defendant Schwartz for excessive
force in violation of the Fourth Amendment incident to Schwartz's arrest of Plaintiff. The Court
15
16
17
18
should dismiss counts one and two as to all other Defendants.
V.
Count Nineteen: Denial of Medical Treatment
Count nineteen of the first amended complaint alleges that Defendants Schwartz, Hughes,
19
and Christianson deliberately denied him medical treatment. Officer Schwartz, says the complaint,
20
failed to transport Plaintiff directly to the hospital emergency room, instead driving over rough roads
21
to cause Plaintiff unnecessary physical pain while verbally harassing him. The facts supporting count
22
nineteen do not indicate denial of medical care, which Plaintiff received at the hospital before being
23
24
transported to the jail, but delay of medical care intended to prolong the discomfort of Plaintiff's
25
injuries. Accordingly, count nineteen is properly evaluated as an additional violation of the Fourth
26
Amendment.
27
28
"[O]nce a seizure has occurred, it continues through the time the arrestee is in the custody of
the arresting officers." Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir. 1985). "Therefore, excessive
12
1
use of force by a law enforcement officer in the course of transporting an arrestee gives rise to a
2
section 1983 claim based upon a violation of the Fourth Amendment." Id. "The trip to the police
3
station is a 'continuing seizure' during which the police are obliged to treat their suspects in a
4
reasonable manner." Fontana v. Haskin, 262 F.3d 871, 879-80 (9th Cir. 2001).
5
6
The verbal harassment alleged to have occurred in the course of the trip to the hospital is not
actionable independent of any physical abuse alleged to have occurred at the same time. "[V]erbal
7
harassment or abuse . . . is not sufficient to state a constitutional deprivation under 42 U.S.C. §
8
9
1983." Yocum v. Kootenai County, 2011 WL 2650217 at *8 (D. Idaho July 6, 2011) (No. CV09-
10
546-REB) (quoting Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)). Verbal abuse may
11
be relevant, however, in assessing the reasonableness of the officer's conduct in the course of the
12
Fourth Amendment analysis. Yocum, 2011 WL 2650217 at *8.
13
14
Count nineteen alleges a cognizable claim of excessive force in arrest in that Schwartz
unduly prolonged the trip to the hospital to increase Plaintiff's pain and discomfort and to afford
15
16
17
Schwartz additional time to abuse Plaintiff verbally. Because no facts are alleged to support the
claim that Hughes and Christianson denied or delayed necessary medical treatment, or harassed
18
Plaintiff in the course of his being transported to the hospital and to jail, this claim is not cognizable
19
and should be dismissed as to those two Defendants.
20
VI.
21
Count Five: Policies and Practices
In count five, the first amended complaint alleges that City of Patterson, Patterson Police
22
Services, Patterson Police Services of the Stanislaus County Sheriff's Department, Hughes, and
23
24
Christianson promulgated the following policies and practices: (1) to employ police officers; (2) to
25
authorize officers to cover up the use of excessive force; (3) to misinform the public that they could
26
record officers in the performance of their duties; (4) to deny and prevent prompt medical care to
27
arrestees; and (5) to verbally abuse detainees. The complaint further alleges that these policies and
28
practices encouraged and caused federal constitutional violations.
13
1
"Section 1983 provides for liability against any person acting under color of law who
2
deprives another 'of any rights, privileges, or immunities secured by the Constitution and laws' of the
3
United States. Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003)
4
(quoting 42 U.S.C. § 1983). Because § 1983 does not provide for vicarious liability, local
5
governments may not be sued under § 1983 for an injury inflicted solely by an employee or agent.
6
Monell, 436 U.S. at 693. Under § 1983, local governmental entities can be directly liable for
7
monetary, declaratory, or injunctive relief only if the allegedly unconstitutional action occurred
8
9
10
11
12
13
14
pursuant to a "policy statement, ordinance, or decision officially adopted and promulgated by that
body's officers." Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1171 (E.D. Cal. 2005).
To prevail on a § 1983 complaint against a local government entity, a Plaintiff must establish
three elements: (1) The local government official intentionally violated the plaintiff's constitutional
rights; (2) The violation arose from policy and custom and was not part of an isolated incident; and
(3) A nexus links a specific policy or custom to the plaintiff's injury. Monell, 436 U.S. at 690-92.
15
16
17
"Where a plaintiff claims that the municipality . . . has caused an employee to [violate the plaintiff's
constitutional rights], rigorous standards of culpability and causation must be applied to ensure that
18
the municipality is not held liable solely for the actions of its employee." Board of County Comm'rs
19
of Bryan County, Okla. v. Brown, 520 U.S. 397, 405 (1997).
20
21
22
A policy may be defined as a deliberate choice by a municipal official with policy making
authority, made from among various alternatives, to follow a course of action. Waggy v. Spokane
County, Washington, 594 F.3d 707, 713 (9th Cir. 2010). "Official municipal policy includes the
23
24
decisions of the government's lawmakers, the acts of its policymaking officials, and practices so
25
persistent and widespread as to practically have the force of law." Connick v. Thompson, 131 S.Ct.
26
1350, 1359 (2011).
27
28
A policy may be one of action or inaction. Id. To allege that an "action" policy is
unconstitutional, a claimant must set forth facts showing that his deprivation resulted from an
14
1
official policy or custom established by a municipal policymaker possessed with final authority to
2
establish that policy." Id., quoting Erdman v. Cochise County, Ariz., 926 F.2d 877, 882 (9th Cir.
3
1991). To prove that an "inaction" policy is unconstitutional, "a plaintiff can allege that through its
4
omissions, the municipality is responsible for a constitutional violation committed by one of its
5
employees." Waggy, 594 F.3d at 713 (quoting Long v. County of Los Angeles, 442 F.3d 1178, 1185
6
(9th Cir. 2006)). A municipality's failure to train its employees is an example of a claim of omission
7
or inaction by a municipal entity. City of Canton v. Harris, 489 U.S. 378, 392 (1989).
8
9
Although the Patterson Police Department obviously employs officers to effectuate their
10
function as the local law enforcement agency, no facts are alleged in the complaint that support
11
Plaintiff's allegations of the remaining policies and practices. An allegation of an action policy, such
12
as Plaintiff's claims of policies (1) to authorize officers to cover up the use of excessive force; (2) to
13
14
misinform the public that they could record officers in the performance of their duties; (3) to deny
and prevent prompt medical care to arrestees; and (4) to verbally abuse detainees, calls for a
15
16
17
18
19
20
21
complainant to allege an express policy or custom, or to set forth factual evidence to permit the
inference that the policy exists. See Waggy, 594 F.3d at 713-14. The first amended complaint does
not do so.
In addition, count five's contentions are factually implausible. For example, the allegations
of the amended complaint do not support a conclusion that Officer Schwartz covered up facts
concerning his arrest of Plaintiff. Although Officer Schwartz allegedly delayed in transporting
22
Plaintiff to the hospital for treatment of his injuries, Officer Schwartz did, in fact, take Plaintiff for
23
24
emergency room treatment before transporting him to jail. Such conduct is inconsistent with a
25
conclusion that Schwartz sought to cover-up the facts of an arrest that allegedly led to Plaintiff's
26
being injured.
27
28
Similarly, the factual allegations in the complaint do not support the allegation that Patterson
Police Services misinformed the public that they could record officers in the performance of their
15
1
duties. Instead, the first amended complaint alleges (at page 7, ¶ 33) that, well before December 3,
2
2012, Officer Watkins advised Plaintiff that department policy precluded recording of officer's
3
activities in performance of their duties. The unnamed police officers who responded to Plaintiff's
4
complaint against the FBI also informed Plaintiff of the department's policy against recording police
5
officers performing their duties. Doc. 13 at 10 ¶51.
6
Although the first amended complaint alleges that Officer Schwartz failed to promptly secure
7
medical treatment for Plaintiff and verbally abused Plaintiff in the course of arrest, it includes no
8
9
factual basis that either delay or verbal abuse was department practice or policy. Allegations of
10
random acts or single instances of municipal employee misconduct do not establish municipal policy
11
or custom. To the extent that claim five alleges that City of Patterson, Patterson Police Services,
12
Patterson Police Services of the Stanislaus County Sheriff's Department, Hughes, and Christianson
13
14
promulgated unconstitutional policies and practices, the claim is not cognizable and should be
dismissed.
15
16
VII.
17
Counts Eleven, Twelve, Sixteen, and Seventeen: Supervisory (Respondeat Superior)
Liability (Federal Claims7)
In count eleven, Plaintiff contends that, since Defendants Schwartz, Hughes, and
18
Christianson were acting within the scope of their employment, Defendants City of Patterson,
19
20
Patterson Police Services, and Stanislaus County Sheriff's Department are liable for compensatory
21
damages for Schwartz, Hughes, and Christianson's intentional torts and the excessive force used in
22
the arrest. In count twelve, Plaintiff contends that because Defendants City of Patterson, Patterson
23
Police Services, and Stanislaus County Sheriff's Department authorized Defendants Schwartz,
24
Hughes, and Christianson to use excessive force and to commit intentional torts, the City of
25
Patterson, Patterson Police Services, and Stanislaus County Sheriff's Department are liable for
26
27
28
7
In counts eleven, twelve, sixteen, and seventeen, Plaintiff also alleges supervisory liability for state torts. Supervisory
liability under California law will be discussed in Section X.B., infra.
16
1
exemplary damages for "defendants'"8 malicious conduct. In counts sixteen and seventeen, the first
2
amended complaint alleges supervisory liability arising from Defendants City of Patterson, Patterson
3
Police Services, and Stanislaus County Sheriff's Department failure to train police officers, including
4
Schwartz, Hughes, and Christianson.
5
6
Supervisory personnel are generally not liable under ' 1983 for the actions of their
employees under a theory of respondeat superior. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
7
1989). For defendants in supervisory positions, a plaintiff must specifically allege a causal link
8
9
10
between each defendant and his claimed constitutional violation. See Fayle v. Stapley, 607 F.2d 858,
862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978).
To state a claim for relief under ' 1983 for supervisory (respondeat superior) liability, a
11
12
13
plaintiff must allege facts indicating (1) that the plaintiff possessed a constitutional right of which he
or she was deprived; (2) that the municipality had a policy; (3) that the policy amounted to a
14
deliberate indifference to the plaintiff's constitutional right; and (4) that the policy was the moving
15
16
force behind the constitutional violation. Plumeau v. School District No. 40 County of Yamhill, 130
17
F.3d 432, 438 (9th Cir. 1997). The plaintiff bears the burden of proof and must identify facts that
18
would allow the court to conclude that the municipality had such a policy or practice. Board of
19
County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 404 (1997).
20
21
Inadequate training may qualify as a constitutional violation under § 1983 if it is sufficiently
inadequate to constitute "deliberate indifference" to the rights of persons with whom the police come
22
in contact. City of Canton, 489 U.S. at 380. A municipality is deliberately indifferent when "the
23
24
need for more or different training is so obvious, and the inadequacy [of current procedure] so likely
25
to result in the violation of constitutional rights, that the policy makers of the city can reasonably be
26
said to have been deliberately indifferent to the need." Id. at 396.
27
28
8
The first amended complaint's use of the term "defendant" in this context is ambiguous. It is unclear whether the
reference is to all Defendants or only to Defendants Schwartz, Hughes, and Christianson .
17
1
For a municipality to be liable under § 1983, a plaintiff must allege facts showing either that
2
"the action that is alleged to be unconstitutional implements or executes a policy statement,
3
ordinance, regulation, or decision officially adopted and promulgated by that body's officers," or
4
that the discriminatory governmental practices are so persistent and widespread as to constitute
5
custom or usage with the force of law. Monell, 436 U.S. at 690-91. "To state a claim under Monell,
6
a party must identify the challenged policy or custom, explain how it was deficient, explain how it
7
caused the plaintiff harm, and reflect how it "amounted to deliberate indifference, i.e. [,] explain . . .
8
9
how . . . the deficiency involved was obvious and the constitutional injury was likely to occur.'"
10
Jarreau-Griffin v. City of Vallejo, 2013 WL 6423379 at * 5 (E.D. Cal. Dec. 9, 2013) (No. 2:12-cv-
11
02979-KJM-KJN) (quoting Young v. City of Visalia, 687 F.Supp.2d 1141, 1149 (E.D. Cal. 2009)).
12
Plaintiff must allege "sufficient . . . . underlying facts to give fair notice and to enable the opposing
13
party to defend itself adequately." AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th
14
Cir. 2012). The allegations may not simply recite the elements for Monell liability without alleging
15
16
17
the specific facts of the particular claim being alleged. Jarreau-Griffin, 2013 WL 6423379 at *6.
Although claims eleven, twelve, sixteen, and seventeen allege supervisory liability for
18
Defendant Schwartz's use of excessive force in violation of the Fourth Amendment, they do not set
19
forth a cognizable claim of supervisory liability for any federal claim. Accordingly, the Court
20
should dismiss that portion of claims eleven, twelve, sixteen, and seventeen alleging supervisory
21
liability for the use of excessive force in violation of the Fourth Amendment.
22
VIII. Counts Sixteen and Seventeen: Failure to Train (Federal Rights)
23
24
Counts sixteen and seventeen allege that Defendants City of Patterson, Patterson Police
25
Department, and the Stanislaus County Sheriff's Department failed to provide adequate training and
26
supervision to its officers, with deliberate disregard for the "rights of private citizens, including
27
Plaintiff." This section addresses allegations of these defendants' failure to train Patterson police
28
officers regarding the federal constitutional rights of private citizens.
18
Analyzing claims against municipal entities for failure to train employees regarding federal
1
2
constitutional rights is a subsection of the Monell analysis. Local governments may not be sued
3
under § 1983 for an injury inflicted solely by an employee or agent. Monell, 436 U.S. at 693. In
4
limited circumstances, however, local governments may be held liable under § 1983 for inadequate
5
training of an employee "when the failure to train amounts to deliberate indifference to the rights of
6
persons with whom the police come in contact." City of Canton, 489 U.S. at 388. Count seventeen
7
of the first amended complaint addresses this standard merely by restating the legal standard
8
9
established in Harris. The allegation of a cognizable claim “requires more than labels and
10
conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at
11
555-6.
12
13
14
No factual allegations in the first amended complaint support the conclusory allegation that
Defendants City of Patterson, Patterson Police Department, and the Stanislaus County Sheriff's
Department failed to train Patterson police officers. "A municipality's culpability for deprivation of
15
16
17
18
19
20
21
rights is at its most tenuous where the claim turns on a failure to train." Connick, 131 S.Ct. at 1359.
To prove deliberate indifference, a complaint must prove that a municipal actor disregarded a known
or obvious consequence of his or her actions. Bryan County, 520 U.S. at 410.
When municipal policymakers are on actual or constructive notice that an omission in their
training program causes employees to violate citizens' constitutional rights, the municipality is
deliberately indifferent if it fails to act to correct the omission. Id. Failure to act in light of notice
22
that its training program results in constitutional violations "is the functional equivalent of a decision
23
24
25
by the city itself to violate the Constitution." Canton, 489 U.S. at 395.
The standard is deliberately high. Applying a less demanding standard in failure-to-train
26
cases would circumvent the rule against respondeat superior liability of municipalities. Id. at 392.
27
"[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a
28
course of action is made from among various alternatives by [the relevant] officials." Penbauer v.
19
1
City of Cincinnati, 475 U.S. 469, 483 (1986). To state a cognizable claim, a plaintiff must allege
2
specific facts supporting the conclusion that the municipal entity had actual or constructive notice
3
that their training program (or lack thereof) resulted in their employees' violating citizens' federal
4
constitutional rights and that the municipality made a deliberate choice to train (or not to train) its
5
employees as a deliberate decision drawn from its consideration of various alternatives.
6
In the face of these very specific and demanding requirements, the first amended complaint
7
alleges nothing more than a completely unsupported legal conclusion that Defendants City of
8
9
Patterson, Patterson Police Department, and the Stanislaus County Sheriff's Department failed to
10
train Patterson police officers. A conclusory pleading, unsupported by factual allegations is
11
insufficient to state a claim. Iqbal, 556 U.S. at 678 (2009); Twombly, 550 U.S. at 555. Since counts
12
sixteen and seventeen are not cognizable, the Court should dismiss them.
13
14
IX.
Count Six: Conspiracy
In its screening of the original complaint in this action, the Court found this claim to be
15
16
17
uncognizable and explained that, to state a cognizable claim of conspiracy, the first amended
complaint needed to allege factual evidence that the Schwartz, Hughes, and Christenson conspired to
18
violate Plaintiff's civil rights. Although the original complaint alleged that Schwartz stated that
19
Watkins had been given "specific instructions as to how to deal with [Plaintiff]," nothing in the
20
complaint indicated the nature of those instructions or suggested that they in any way contemplated
21
the violation of Plaintiff's civil rights. If Plaintiff elected to amend count six, said the Court, the
22
amended complaint must include factual allegations to support the conclusion that those instructions
23
24
25
26
contemplated violation of his civil rights as well as facts indicating a common agreement between
Schwartz, Hughes, and Christianson.
Count six of the first amended complaint sets forth no facts revealing a common agreement
27
between Defendants Schwartz, Hughes, and Christianson to violate Plaintiff's civil rights. Instead, it
28
simply sets forth selected episodes in Plaintiff's longstanding disputes with officials in Merced
20
1
County and the City of Los Banos, and then concludes, with no factual basis, that because Plaintiff
2
had informed Defendants Schwartz, Hughes, and Christianson of those disputes, Defendants
3
Schwartz, Hughes, and Christianson had joined the pre-existing conspiracy.9
4
5
6
7
To state a cognizable conspiracy claim under California law, a plaintiff must allege (1) the
formation and operation of the conspiracy, (2) the wrongful act or acts done pursuant to the
conspiracy, and (3) the damage resulting from the act or acts. Wasco Products, Inc. v. Southwall
Technologies, Inc., 435 F.3d 989, 992 (9th Cir. 2006). In the context of claims brought under § 1983,
8
9
the complaint must allege material facts that show an agreement among the alleged conspirators to
10
deprive the party of his or her civil rights. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). The
11
first amended complaint does not do so.
12
13
14
A conspiracy claim brought under ' 1983 requires proof of A>an agreement or >meeting of the
minds= to violate constitutional rights,@ Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (quoting
United Steel Workers of Amer. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir.)), as well as
15
16
an Aactual deprivation of constitutional rights resulting from the alleged conspiracy.@ Hart v. Parks,
17
450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Okla., 866 F.2d 1121,
18
1126 (9th Cir. 1989)). ATo be liable, each participant in the conspiracy need not know the exact
19
details of the plan, but each participant must at least share the common objective of the conspiracy.=@
20
Franklin, 312 F.3d at 441, quoting United Steel Workers, 865 F.2d at 1541.
21
The allegations in the first amended complaint do not satisfy the elements of conspiracy.
22
Claim six does not state a cognizable claim and should be dismissed.
23
24
X.
In counts seven through eighteen, Plaintiff alleges various claims under California state law.
25
26
State Claims
Section 1983 does not provide a cause of action for violations of state law. See Weilburg v. Shapiro,
27
28
9
No facts alleged in the first amended complaint support a conclusion that Plaintiff had any direct interaction with
Defendant Christianson on any matter at any point.
21
1
488 F.3d 1202, 1207 (9th Cir. 2007); Galen v. County of Los Angeles, 477 F.3d 652, 662 (9th Cir.
2
2007); Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001); Sweaney v. Ada County, Idaho, 119 F.3d
3
1385, 1391 (9th Cir. 1997); Lovell v. Poway Unified School Dist., 90 F.3d 367, 370 (9th Cir. 1996);
4
Draper v. Coombs, 792 F.2d 915, 921 (9th Cir. 1986); Ybarra v. Bastian, 647 F.2d 891, 892 (9th
5
Cir.), cert. denied, 454 U.S. 857 (1981). Pursuant to 28 U.S.C. ' 1367(a), however, in any civil
6
action in which the district court has original jurisdiction, the district court Ashall have supplemental
7
8
9
10
jurisdiction over all other claims in the action within such original jurisdiction that they form part of
the same case or controversy under Article III,@ except as provided in subsections (b) and (c).
A[O]nce judicial power exists under ' 1367(a), retention of supplemental jurisdiction over
11
state law claims under 1367(c) is discretionary.@ Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th
12
Cir. 1997). AThe district court may decline to exercise supplemental jurisdiction over a claim under
13
14
subsection (a) if . . . the district court has dismissed all claims over which it has original
jurisdiction.@ 28 U.S.C. ' 1367 (c)(3). The Supreme Court has cautioned that Aif the federal claims
15
16
are dismissed before trial . . . the state claims should be dismissed as well.@ United Mine Workers of
17
Amer. v. Gibbs, 383 U.S. 715, 726 (1966). If, later in the course of this case's litigation, no federal
18
claims remain, the Court may dismiss the case for lack of federal jurisdiction.
19
20
21
A.
California Tort Claims Act
As a condition precedent to filing tort claims against state government entities, officials, or
employees, a plaintiff must comply with the notice provisions of the California Tort Claims Act
22
(California Government Code § 945, et seq.), which requires the timely presentation of a written
23
24
claim. A plaintiff may not pursue a tort claim against such defendants in a civil action without
25
alleging his or her compliance with the notice requirements. Karim-Panahi v. Los Angeles Police
26
Dep't, 839 F.2d 621, 627 (9th Cir. 1988). The original complaint alleged that plaintiff filed a claim in
27
March 2013 but did not allege that the scope or nature of the claim. Although the order screening
28
the original complaint directed Plaintiff to allege more fully the nature and scope of the state tort
22
1
claim filed, the first amended complaint appears to omit totally any reference to it. Plaintiff is
2
advised that if one or more of the Defendants raise this issue in their responsive pleading(s) and if
3
Plaintiff fails to prove that he provided the requisite statutory notice, the Court may dismiss one or
4
more state claims at that time.
5
B.
6
7
Counts Eleven, Twelve, Fifteen, Sixteen, and Seventeen: Supervisory Liability
Except for changing the designation from Patterson Police Department to Patterson Police
Services10 in the first amended complaint, counts eleven, twelve (in part), fifteen, sixteen, and
8
9
seventeen remain unchanged from the original complaint. In counts eleven and twelve, the first
10
amended complaint alleges that Defendants City of Patterson, Patterson Police Services, and the
11
Stanislaus County Sheriff's Department are liable for the intentional torts of Defendants Schwartz,
12
Hughes, and Christianson. In counts fifteen and sixteen, the first amended complaint alleges that
13
14
Defendants City of Patterson, Patterson Police Services, and the Stanislaus County Sheriff's
Department are liable for compensatory damages to Plaintiff under the theory of respondeat superior
15
16
17
for the negligence of Defendants Schwartz, Hughes, and Christianson. In Counts sixteen and
seventeen, the first amended complaint alleges that Defendants City of Patterson, Patterson Police
18
Services, and the Stanislaus County Sheriff's Department are liable for their negligent failure to
19
provide training, supervision, and control of defendants.
20
21
Under California law, "[a] public entity is liable for injury proximately caused by an act or
omission of an employee of the public entity within the scope of his employment if the act or
22
omission would, apart from this section, have given rise to a cause of action against that employee or
23
24
his personal representative." California Government Code § 815.2(a). Thus, in contrast to the
25
unavailability of supervisory liability for Schwartz's federal constitutional violations, Plaintiff may
26
seek to hold City of Patterson, Patterson Police Department, and the Stanislaus County Sheriff's
27
28
10
Peculiarly, this section of the first amended complaint consistently refers to "Patterson Police Services Patterson Police
Services." Whether the duplication was intentional is not clear.
23
1
Department liable for torts committed in violation of California state law. Since this screening has
2
determined that several of the state tort claims against Defendant Schwartz are cognizable, the
3
vicarious liability claims against these public entities may proceed with regard to those claims. Bass
4
v. City of Fremont, 2013 WL 891090 at * 8 (N.D. Cal. March 8, 2013) (No. C12-4943 TEH)
5
6
C.
Counts Seven and Eight: Assault and Battery
Counts seven and eight of the first amended complaint are not changed from the original
7
complaint. These claims allege that through the beating and verbal abuse incident to Plaintiff's
8
9
10
11
12
13
14
arrest, Defendants Schwartz, Hughes, and Christianson committed assault and battery. Count seven
seeks compensatory damages; count eight seeks exemplary damages.
As the Court previously determined, since the claim against Defendant Schwartz for
violating the 4th Amendment by using excessive force in the course of arrest is cognizable, the
assault and battery claim against him is also cognizable. Because the complaint alleges no facts to
support claims of assault or battery against Hughes or Christianson, those claims are not cognizable
15
16
17
18
and should be dismissed.
D.
Counts Nine and Ten: Intentional Infliction of Emotional Distress
In counts nine and ten, the first amended complaint alleges that through the beating and
19
verbal abuse incident to his arrest, Defendants Schwartz, Hughes, and Christianson intentionally
20
inflicted emotional distress on Plaintiff. Count nine seeks compensatory damages; count ten seeks
21
exemplary damages.
22
As was the case for prior claims, the complaint includes no factual allegations that Hughes or
23
24
Christianson participated in the beating and verbal abuse of Plaintiff incident to his arrest on
25
December 3, 2012. Accordingly, counts nine and ten do not directly state cognizable claims against
26
Hughes or Christianson and should be dismissed as to those two defendants.
27
28
To state a cognizable claim for intentional infliction of emotional distress, a plaintiff must
allege facts supporting the following elements: (1) the defendant engaged in extreme and outrageous
24
1
conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional
2
distress; (2) the plaintiff suffered extreme or severe emotional distress; and (3) the defendant's
3
extreme and outrageous conduct was the actual and proximate cause of the plaintiff's extreme or
4
severe emotional distress. Yun Hee So v. Sook Ja Shin, 212 Cal.App.4th 652, 671 (2013).
5
6
"Outrageous conduct" is conduct that is intentional or reckless and so extreme as to exceed
"all bounds of decency in a civilized community." Id. "Where reasonable persons may differ, the
7
trier of fact is to determine whether the conduct has been sufficiently extreme and outrageous to
8
9
result in liability." Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007). When an officer's
10
actions incident to the plaintiff's arrest are reasonable as a matter of law, the plaintiff cannot
11
establish that the officer engaged in extreme or outrageous conduct. Long v. City and County of
12
Honolulu, Hawaii, 511 F.3d 901, 908 (9th Cir. 2007). See also Mejia v. City of San Bernardino,
13
14
2012 WL 1079341 at * 13 (C.D. Cal. Mar. 30, 2012) (No. EDCV 11-00452 VAP).
"Generally, a plaintiff may not recover for intentional infliction of emotional distress unless
15
16
17
the distress suffered has been extreme." Hailey v. California Physicians' Service, 158 Cal.App.4th
452, 476 (2007). Severe distress is emotional distress that is "of such substantial quantity or
18
enduring quality that no reasonable man in a civilized society should be expected to endure it." Id.
19
See, e.g., Lawler v. Montblanc North America LLC, 704 F.3d 1235, 1246 (9th Cir. 2013) (holding
20
that allegations of anxiety, sleeplessness, upset stomach, and occasional muscle twitches were not
21
sufficient to establish severe emotional distress); Hughes v. Pair, 46 Cal.4th 1035, 1051 (2009)
22
(allegations of discomfort, worry, anxiety, upset stomach, concern, and agitation insufficient); Wong
23
24
v. Tai Jing, 189 Cal.App.4th 1354, 1376 (2010) (allegations of emotional upset, lost sleep, stomach
25
upset, and general anxiety insufficient); Saari v. Jongordon Corp., 5 Cal.App.4th 797, 806-07 (1992)
26
(complete disruption of life and diagnosis of depression sufficient); Kelly-Zurian v. Wohl Shoe Co.,
27
22 Cal.App.4th 397, 410 (1994) (anxiety, chest tightness, heart palpitations, panic attacks,
28
depression, insomnia, and diagnosis of post-traumatic stress disorder sufficient); Bass, 2013 WL
25
1
2
891090 at * 7 (allegations of severe emotional and mental stress, fear, terror, anxiety, humiliation,
embarrassment, anger, indignity, loss of freedom, and sense of helplessness insufficient).
3
Conclusory allegations that a plaintiff suffered severe emotional distress are insufficient to
4
state a cognizable claim. See Steel v. City of San Diego, 726 F.Supp.2d 1172, 1191-92 (S.D. Cal.
5
2010). To state a cognizable claim, the complaint must include factual allegations describing the
6
nature of the severe emotional distress that the plaintiff is alleged to have experienced. Harvey G.
7
Ottovich Revocable Living Trust Dated May 12, 2006 v. Washington Mutual, Inc., 2010 WL
8
9
3769459 at *6 (N.D. Cal. September 22, 2010) (No. C 10-02843 WHA).
10
Because the allegations in the original complaint were wholly conclusory, the Court
11
dismissed counts nine and ten with leave to amend. The allegations in the first amended complaint
12
attempt to flesh out Plaintiff's claims for intentional infliction of emotional distress. Unfortunately,
13
14
they attempt to do so by confusing the incident that is the subject of this case, Officer Schwartz's
alleged use of excessive force in arresting Plaintiff for threatening a police officer, with Plaintiff's
15
16
17
claims against employees and officials in Merced County and the City of Los Banos, which are the
subject of his other federal cases. The first amended complaint alleges no evidence whatsoever
18
supporting the speculative conclusion that the Defendants in this case were somehow tied to the
19
incidents in Merced County and the City of Los Banos.
20
21
When the Court disregards the allegations relating to the unrelated incidents and speculative
accusations of conspiracy, all that remains are legal conclusions that "Plaintiff suffered extreme and
22
severe emotional distress," "suffered extreme stress, lack of sleep, anxiety, headaches, and emotional
23
24
duress, " and "Defendant's extreme and outrageous conduct was the actual and proximate cause of
25
the plaintiff's extreme or severe emotional distress. Yun Hee So v. Sook Ja Shin, 212 Cal.App.4th
26
652, 671 (2013)." Doc. 13 at 25-26. Entangling Plaintiff's mental and physical distress to the
27
unrelated incidents in Merced County and the City of Los Banos, the vague and conclusory
28
allegations of physical and emotional distress cloud the allegations as to Defendant Schwartz. In the
26
1
absence of specific allegations of diagnosis and treatment of any physical and mental sequelae and
2
their timing, the first amended complaint fails to tie any of the alleged after-effects to the arrest that
3
is the subject of this suit. Since the first amended complaint appears to state a claim of intentional
4
infliction of emotional distress against Schwartz when it is taken as a whole, however, the
5
undersigned recommends that the Court permit the claim of intentional infliction of emotional
6
distress against Defendant Schwartz to proceed.
7
8
9
E.
Counts Thirteen and Fourteen: Negligence
In screening the original complaint, the Court concluded that counts thirteen and fourteen
10
stated cognizable claims against Defendant Schwartz, but not against Defendants Hughes and
11
Christianson. Nonetheless, the first amended complaint repeats the allegations that Defendants
12
Schwartz, Hughes, and Christianson acted negligently in using excessive force when arresting
13
14
Plaintiff.
The sole change in the first amended complaint is strengthening the language regarding the
15
16
17
Defendants' duties to Plaintiff as police officers. The complaint still includes no factual allegations
that Hughes or Christianson participated in Plaintiff's arrest or personally touched him. Accordingly,
18
neither Hughes nor Christianson could have acted negligently in the course of Plaintiff's arrest.
19
Counts thirteen and fourteen do not state cognizable claims against Hughes or Christianson, and
20
must be dismissed as to those two Defendants.
21
Under California law, the elements of negligence are (1) a legal duty to use due care; (2) a
22
breach of that legal duty; and (3) the breach as the proximate or legal cause of the resulting injury.
23
24
Evan F. v. Hughson United Methodist Church, 8 Cal.App.4th 828, 834 (1992). Whether Defendant
25
Schwartz breached a legal duty to use different tactics or less force in arresting Plaintiff requires the
26
same analysis as determining whether his actions were reasonable for Fourth Amendment purposes.
27
Hernandez v. City of Pomona, 46 Cal. 4th 501, 513 (2009). See also Robinson v. Solano County, 278
28
27
1
2
F.3d 1007, 1016 (9th Cir. 2002). Thus, Plaintiff also states a cognizable claim against Schwartz for
negligence in the use of excessive force in Plaintiff's arrest.
The Court should allow claims thirteen and fourteen to proceed against Defendant Schwartz,
3
4
but dismiss these claims as to Defendants Christianson and Hughes.
5
F.
6
Count Eighteen (in part): Malicious Abuse of Process
In its prior screening order, the Court dismissed with prejudice that portion of count eighteen
7
alleging malicious abuse of process. The Court found that the claim was not cognizable because
8
9
Defendants Schwartz, Hughes, and Christianson are immune from liability pursuant to California
10
Government Code §§ 815.2(d) and 821.6. The first amended complaint's attempt to revive a claim
11
of malicious abuse of process by contending, at paragraph 177, that Defendants Schwartz, Hughes,
12
and Christianson conspired with Merced County District Attorney Larry Morse is neither supported
13
14
by factual allegations nor sufficient to circumvent the immunity provided by California law. The
Court should restate the dismissal of the malicious abuse of process claim set forth in count eighteen.
15
G.
16
Count Eighteen (in part): False Arrest or False Imprisonment
In its prior screening order, the Court found the claim of false arrest or imprisonment11
17
18
cognizable against Defendant Schwartz. It dismissed the claim as to Defendants Hughes and
19
Christianson, however, since no factual allegations linked them to Plaintiff's arrest or imprisonment.
20
Completely restating count eighteen's claim of false arrest, the first amended complaint attempts to
21
revive the false imprisonment claim by alleging that Schwartz, Hughes, and Christianson falsely
22
arrested and imprisoned Plaintiff to further a conspiracy with Merced County District Attorney Larry
23
24
Morse.
No facts alleged in the first amended complaint support the claim that Hughes and
25
26
Christianson conspired with Morse or any other Merced County official or employee. Nothing in the
27
28
11
The prior screening order found that claims of false arrest and false imprisonment are variations of the same tort. See
Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998).
28
1
complaint links Defendants Hughes and Christianson to Plaintiff's arrest or imprisonment.
2
According to the facts, only Schwartz arrested Plaintiff and transported him to the County Jail, at
3
which point Plaintiff remained in custody until bail was set by judicial process. In the absence of
4
any factual allegations linking Hughes or Christianson to Plaintiff's arrest and detention, the
5
complaint fails to state a cognizable claim against either.
6
This count states a cognizable claim against Defendant Schwartz only. The Court should
7
dismiss the claim of false arrest against Hughes and Christianson as not cognizable.
8
9
10
XI.
Conclusion and Recommendation
As discussed above and summarized in the order below, only certain counts within Plaintiff=s
11
complaint state cognizable claims and those claims are presently cognizable against less that all
12
defendants named by Plaintiff as liable under those claims. The undersigned recommends that the
13
14
District Court finalize the screening process, concluding the following:
1.
Counts one and two, alleging a § 1983 claim of the use of excessive force in the
15
course of arrest in violation of the Fourth Amendment, state cognizable claims
16
against Defendant Schwartz and should proceed;
17
18
2.
Counts one and two, alleging § 1983 claims of the use of excessive force in the
19
course of arrest in violation of the Fourth Amendment, do not state cognizable claims
20
against Defendants Hughes and Christianson, and should be dismissed as to
21
Defendants Hughes and Christianson;
22
3.
Counts three and four (omitted from the first amended complaint), alleging claims
23
24
under an unidentified statute other than § 1983 for the use of excessive force in the
25
course of arrest, did not state a cognizable claim against any Defendant and were
26
dismissed with leave to amend in the prior screening order. Because Plaintiff did not
27
amend claims three and four, their dismissal should be restated;
28
29
1
4.
Count five, alleging § 1983 claim that Defendants City of Patterson, Patterson Police
2
Services, Patterson Police Services of the Stanislaus County Sheriff's Department,
3
Hughes, and Christianson promulgated policies and practices intended to encourage
4
and cause federal constitutional violations, fails to state a cognizable claim and
5
should be dismissed;
6
5.
Count six, alleging conspiracy to violate Plaintiff's civil rights under § 1983 or
7
California law or both, fails to state a cognizable claim against any Defendant and
8
should be dismissed;
9
10
6.
cognizable claims against Defendant Schwartz and should be permitted to proceed;
11
12
Counts seven and eight, alleging assault and battery under California law, state
7.
13
Counts seven and eight, alleging assault and battery under California law, do not state
cognizable claims against Defendants Hughes and Christianson, and should be
14
dismissed;
15
16
8.
California law, state a cognizable claim against Defendant Schwartz and should be
17
permitted to proceed against him;
18
19
Counts nine and ten, alleging intentional infliction of emotional distress under
9.
20
Counts nine and ten, alleging intentional infliction of emotional distress under
California law, do not state a cognizable claim against Defendants Hughes or
21
Christianson and should be dismissed as to those Defendants;
22
10.
Counts eleven and twelve, alleging federal claims of supervisory liability under 42
23
U.S.C. § 1983 are not cognizable as to any Defendant and should be dismissed;
24
25
11.
Counts eleven, twelve, fifteen, sixteen, and seventeen, alleging respondeat superior
26
liability against Defendants City of Patterson, Patterson Police Services, and
27
Stanislaus County Sheriff's Department, with regard the intentional torts (state
28
claims) of Defendant Schwartz, are cognizable and should be permitted to proceed;
30
1
12.
cognizable claim against Defendant Schwartz and should be permitted to proceed;
2
3
Counts thirteen and fourteen, alleging negligence in the course of arrest, state a
13.
Counts thirteen and fourteen, alleging negligence in the course of arrest, do not state
4
cognizable claims against Defendants Hughes and Christianson, and should be
5
dismissed;
6
14.
Counts sixteen (in part) and seventeen (in part), with regard to the allegation of
7
failure to provide adequate training with regard to the federal rights of private
8
citizens, is not cognizable and should be dismissed;
9
10
15.
Count eighteen (in part), alleging malicious abuse of process, is not cognizable
11
because Defendants Schwartz, Hughes, and Christianson are immune from liability
12
pursuant to California Government Code §§ 815.2(d) and 821.6, and should be
13
14
dismissed with prejudice;
16.
Count eighteen (in part), alleging false arrest or false imprisonment, states a
15
cognizable claim against Defendant Schwartz and should be permitted to proceed;
16
17
17.
Count eighteen (in part), alleging false arrest or false imprisonment, does not state
18
cognizable claims against Defendants Hughes and Christianson, and should be
19
dismissed;
20
18.
21
Count nineteen, alleging denial of medical treatment, states a cognizable § 1983 claim
of the use of excessive force in the course of arrest in violation of the Fourth
22
Amendment against Defendant Schwartz;
23
24
19.
Count nineteen, alleging denial of medical treatment, does not state a cognizable
25
§ 1983 claim of the use of excessive force in the course of arrest in violation of the
26
Fourth Amendment against Defendants Hughes and Christianson, and should be
27
dismissed as to those defendants.
28
31
1
These findings and recommendations are submitted to the Honorable Lawrence J. O'Neill,
2
United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule
3
72-304 of the Local Rules of Practice for the United States District Court, Eastern District of
4
California. Within fourteen (14) days after being served with a copy, Plaintiff may file written
5
objections with the court. Such a document should be captioned “Objections to Magistrate Judge‟s
6
Findings and Recommendations.” The Court will then review the Magistrate Judge‟s ruling
7
pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff advised that failure to file objections within the
8
specified time may waive the right to appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d
9
1153 (9th Cir. 1991).
10
11
12
13
14
IT IS SO ORDERED.
Dated:
June 27, 2014
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
15
16
17
18
19
20
21
22
23
24
25
26
27
28
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?