Martinez v. City of Clovis, et al.

Filing 43

ORDER signed by Judge John A. Mendez on 1/5/16 GRANTING in part and DENYING in part Defendants' MOTION to DISMISS Plaintiff's First, Second, Fourth and Eleventh Claims for Relief in the First Amended Complaint 16 . The Court DENIES the Def endants' MOTION to DISMISS Plaintiff's claims for due process violations against Clovis and the individual Defendants and DENIES the MOTION to Dismiss Plaintiff's request for punitive damages. If Plaintiff elects to amend any of the claims dismissed herein, she shall file her Second Amended Complaint within twenty days of the date of this Order. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DESIREE MARTINEZ,

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1:15-cv-00683-JAM-MJS

Plaintiff,

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No.

v.
KYLE PENNINGTON; KIM
PENNINGTON; CONNIE
PENNINGTON; KRISTINA
HERSHBERGER; JESUS SANTILLAN;
CHANNON HIGH; THE CITY OF
CLOVIS; ANGELA YAMBUPAH;
RALPH SALAZAR; FRED SANDERS;
THE CITY OF SANGER; AND DOES
1 through 20,

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’, THE
CITY OF CLOVIS, THE CITY OF
SANGER, KRISTINA HERSHBERGER,
JESUS SANTILLAN, CHANNON HIGH,
ANGELA YAMBUPAH, RALPH SALAZAR,
AND FRED SANDERS, MOTION TO
DISMISS PLAINTIFF’S FIRST,
SECOND, FOURTH AND ELEVENTH
CLAIMS FOR RELIEF IN THE FIRST
AMENDED COMPLAINT

Defendants.

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Plaintiff Desiree Martinez (“Plaintiff”) brought this

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lawsuit against eleven defendants. Eight of the eleven defendants

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have filed this motion to dismiss four of the claims for relief

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in Plaintiff’s first amended complaint (“FAC”) (Doc. #16). 1

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Plaintiff opposed the motion (Doc. #36).
Defendants Kyle Pennington (“KP”), Kim Pennington (“Mr.

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Pennington”), and Connie Pennington (“Mrs. Pennington”) did not

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for December 2, 2015.
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join in this motion to dismiss, nor did any of the Pennington

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defendants file their own motions to dismiss.

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addresses only the four claims brought against defendants the

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City of Clovis (“Clovis”), the City of Sanger (“Sanger”),

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Kristina Hershberger (“Hershberger”), Jesus Santillan

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(“Santillan”), Channon High (“High”), Angela Yambupah

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(“Yambupah”), Ralph Salazar (“Salazar”), and Fred Sanders

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(“Sanders”).

Thus, this order

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff began a relationship with KP, an officer with the

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Clovis Police Department (“CPD”), in February 2013.

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KP and Plaintiff began living together soon after they started

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dating.

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attacked Plaintiff for the first time by choking her in a hotel

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room.

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to harm Plaintiff again, so Plaintiff contacted the CPD.

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¶ 18(a).

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investigation by the [CPD] for abusing his prior significant

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other.”

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Id.

Id.

FAC ¶ 16.

In April of the same year, KP allegedly physically

Plaintiff alleges that on May 2, 2013, KP threatened
Id.

Plaintiff alleges that KP “was already under

Id. ¶ 17.

Defendants Hershberger and Santillan, both of whom were

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officers with the CPD, responded to Plaintiff’s call.

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Plaintiff alleges that Hershberger and Santillan did not separate

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KP and Plaintiff before asking Plaintiff about the alleged

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threats.

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Plaintiff gave “equivocal accounts” of the incident.

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Plaintiff alleges that she gave Hershberger an “equivocal

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account[]” of what happened because Plaintiff was intimidated by

Id.

Id.

Hershberger asked Plaintiff questions, but

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Id.

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KP’s presence.

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lacked probable cause to arrest KP.

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Hershberger and Santillan did not tell Plaintiff about a right to

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make a private person’s arrest or to seek a long term restraining

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order.

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abused Plaintiff after Hershberger and Santillan left.

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¶ 18(b).

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Id.

Id.

Hershberger determined that the officers
Id.

Plaintiff alleges that

Plaintiff alleges that KP physically and emotionally
Id.

Less than three weeks later, Plaintiff contacted Officer
Gary Taylor (“Taylor”) of the CPD.

Id. ¶ 18(c).

Plaintiff told

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Taylor that KP was abusing her and showed Taylor her injuries.

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Id.

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citizen’s arrests or emergency or long-term restraining orders.

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Id.

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called the CPD anonymously.

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(“Roberts”) returned Plaintiff’s call and interviewed her,

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allegedly while KP was with Plaintiff.

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that Roberts did not tell Plaintiff about her rights to a

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citizen’s arrest, restraining orders, or a domestic violence

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advocate.

Plaintiff alleges that Taylor did not tell Plaintiff about

Eight days after Plaintiff’s call to Taylor, Plaintiff
Id. ¶ 18(f).

Sergeant Tom Roberts

Id.

Plaintiff alleges

Id.

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A few days after Plaintiff’s anonymous call to the CPD,

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Plaintiff alleges that defendant High called and informed KP that

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Plaintiff had called the CPD to report abuse by KP.

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Plaintiff alleges that because of High’s call to KP, KP severely

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abused Plaintiff from June 1 to June 4 of 2013.

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Id. ¶ 18(g).

Id. ¶ 18(h).

Sometime between February and June 2013, Plaintiff alleges

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that she and KP moved from Clovis to Sanger.

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2013, at least one of Plaintiff and KP’s neighbors allegedly

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called 911 to report that KP was abusing Plaintiff.
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Id.

On June 4,

Id. ¶ 18(i).

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Defendants Yambupah and Salazar, both officers for the Sanger

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Police Department (“SPD”), were dispatched to KP and Plaintiff’s

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home in response to the 911 calls.

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she had “many obvious injuries.”

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allegedly did not separate Plaintiff from KP to question her

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about the abuse.

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being separated from KP, she felt intimidated and indicated that

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she did not want to press charges.

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left without arresting KP.

Id.

Id.
Id.

Plaintiff alleges that
Yambupah and Salazar

Plaintiff alleges that as a result of not

Id.

Id.

Yambupah and Salazar

Plaintiff also alleges that

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Yambupah and Salazar did not tell Plaintiff about her rights to a

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citizen’s arrest and a restraining order.

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and sexually assaulted Plaintiff later that night.

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Plaintiff contacted both the CPD and SPD.

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arrest warrant and a restraining order were issued against KP on

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June 5, 2013.

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Id.

KP allegedly beat
Id.

Id. ¶ 18(j).

An

Id. ¶ 18(j), 18(m).

After his June arrest, KP continued to live with Plaintiff,

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even though there was a restraining order requiring KP to stay

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away from Plaintiff.

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KP allegedly continued to physically, sexually, and emotionally

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abuse Plaintiff.

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reported KP’s violations of the restraining order to the CPD.

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Id. ¶ 18(m).

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CPD allegedly would alert KP whenever Plaintiff called the CPD.

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Id.

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calls to the CPD, KP would physically abuse Plaintiff.

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June through the beginning of September 2013, KP was never

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arrested for violating the restraining order or abusing

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Plaintiff.

Id. ¶ 18(n).

Id. ¶ 18(k)-(l).

Between June and August 2013,

Plaintiff alleges that she

High and another unidentified records clerk for the

Plaintiff alleges that when KP found out about Plaintiff’s

Id. ¶ 18(n).
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Id.

From

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KP was arrested on September 18, 2013, allegedly for

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brutally beating Plaintiff.

Id. ¶ 18(m).

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away from Plaintiff, and Plaintiff moved from Sanger to Clovis

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around October 2013.

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contact Plaintiff in violation of the restraining order.

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¶ 18(o).

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the CPD about KP’s violation of the restraining order, but KP was

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never arrested for violating the restraining order.

Id. ¶ 18(n)-(o).

KP was forced to move

KP allegedly continued to
Id.

Plaintiff alleges that numerous reports were made to

Id.

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KP was eventually charged with several violations of the

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California Penal Code relating to domestic violence, threats,

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false imprisonment, violating a restraining order, and more.

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¶ 18(j).

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restraining order, but hung on the other charges.

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pled guilty to one domestic violence charge to avoid a retrial.

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Id.

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Id.

A jury convicted KP on multiple counts of violating the
Id. ¶ 19.

KP

Plaintiff filed suit against defendants KP, Mr. Pennington,

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Mrs. Pennington, High, Clovis, and Sanger on May 1, 2015 (Doc.

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#1).

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Hershberger, Santillan, Yambupah, Salazar, and Sanders two weeks

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later (Doc. #6).

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Santillan, Yambupah, Salazar, and Sanders moved to dismiss each

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cause of action asserted against them (Doc. #16).

Plaintiff amended her complaint and added defendants

Defendants Clovis, Sanger, High, Hershberger,

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II.

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OPINION

As noted above, Plaintiff brings eleven causes of action in

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her FAC.

FAC at 15-24.

Plaintiff’s third and fifth through

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tenth claims for relief are brought only against defendants that

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did not join in this motion to dismiss.
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Id. at 18, 20-24.

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Thus, only Plaintiff’s first, second, fourth, and eleventh

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claims for relief are at issue in this motion to dismiss.

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A.

Plaintiff’s First Claim For Relief

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Plaintiff brings her first claim for relief against the

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cities of Clovis and Sanger under theories of municipal liability

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pursuant to 42 U.S.C. § 1983.

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causes of action under her first claim for relief: 1) violation

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of Plaintiff’s substantive due process rights and 2) violation of

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Plaintiff’s right to equal protection under the law.

Id. at 15.

Plaintiff alleges two

Id.

To

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survive a motion to dismiss on Plaintiff’s due process and equal

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protection claims against the cities, Plaintiff must allege facts

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sufficient to show that the cities had a custom or policy that

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inflicted the constitutional injury.

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Servs. of N.Y.C., 436 U.S. 658, 694 (1978).

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under Monell is a “longstanding practice . . . which constitutes

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the standard operating procedure of the local government entity.”

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Ulrich v. City & Cty. of San Francisco, 308 F.3d 968, 984-85 (9th

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Cir. 2002).

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its causal relationship to the constitutional injury, in

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sufficient detail.”

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2014 WL 1616440, at *5 (E.D. Cal Apr. 18, 2014).

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Monell v. Dep’t of Soc.
A “policy or custom”

“[T]he complaint must allege the policy, as well as

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Hass v. Sacramento Cty. Sheriff’s Dept.,

Plaintiff’s Due Process claims against Clovis and
Sanger

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Plaintiff alleges that the CPD and the SPD had “customs,

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policies, and/or practices of insensitivity toward domestic

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violence victims and lax enforcement of domestic violence laws.”

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FAC ¶ 18.

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“frequently did not comply with the laws intended to protect

Plaintiff also alleges that both the CPD and the SPD

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domestic violence victims.”

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that the CPD and SPD officers’ “fail[ure] to provide [Plaintiff]

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with the services that she was entitled to as a victim of

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domestic violence . . . directly resulted in additional harm to

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[Plaintiff].”

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Id. ¶ 24.

Plaintiff also alleges

Id. ¶ 18.

In general, government actors have no obligation to protect

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individual citizens from harm.

DeShaney v. Winnebago Cty. Dept.

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of Soc. Servs., 489 U.S. 189, 195-96 (1989).

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however, may be liable for violating an individual’s substantive

The government,

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due process rights if a government actor places the individual in

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a worse position than she would have been without the government

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action.

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See id. at 201.

Plaintiff alleges that Clovis’ custom of lax enforcement of

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domestic violence laws placed Plaintiff “in a worse situation

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than she otherwise would have been.”

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provides at least three examples of how her situation became

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worse after her interactions with law enforcement.

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alleges that after her interaction with Hershberger and Santillan

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on May 2, 2013 ended, Plaintiff “suffered further physical and

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emotional abuse from [KP].”

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alleges that on May 21, 2013, KP “was advised by another member

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of the [CPD]” that Plaintiff had contacted the CPD that day.

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¶ 18(d).

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[Plaintiff] ha[d] contacted law enforcement, he again physically

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abused her.”

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officer her “fresh injuries that resulted from [KP’s] abuse” on

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the following day.

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“[a]s a direct result of High’s improper disclosure of

Id. ¶ 23.

Id. ¶ 18(b).

Plaintiff

First, she

Second, Plaintiff

Id.

Plaintiff alleges that “[w]hen [KP] found out that

Id.

Plaintiff alleges that she showed a CPD

Id. ¶ 18(e).

Finally, Plaintiff alleges that

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[Plaintiff’s] [May 29, 2013] anonymous call, [Plaintiff] suffered

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one of the worse periods of abuse by [KP].”

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Plaintiff suggests that if CPD officers had handled her

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allegations against KP properly, KP would not have been able to

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continually abuse Plaintiff.

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Id. ¶ 18(h).

See id. ¶ 23-25.

Plaintiff also supports her allegations of an impermissible

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policy or practice against the CPD with factual examples.

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Plaintiff alleges at least five interactions with officers of the

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CPD who did not inform Plaintiff of her rights as a domestic

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violence victim.

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least three instances where officers of the CPD did not separate

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Plaintiff and KP when asking Plaintiff about the alleged abuse.

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Id. ¶ 18(a)-(b), (f)-(g).

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taken as true, show a pattern of lax enforcement in domestic

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violence cases by the CPD.

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Id. ¶ 18(a)-(g).

Plaintiff also alleges at

All of these factual allegations, when

Defendants argue that Plaintiff fails to allege facts

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sufficient to support a theory of Monell liability.

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They argue that Plaintiff sets forth only conclusory allegations

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against Clovis and Sanger.

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the allegations against Clovis are conclusory and insufficient to

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survive a motion to dismiss is unpersuasive.

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her allegations against Clovis with several factual examples.

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Against Sanger, however, Plaintiff alleges only one instance of

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interaction with the SPD.

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is not enough to allege a policy of lax domestic violence

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enforcement.

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against Clovis for violation of her due process rights, because

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the facts, taken as true, support Plaintiff’s allegation of an

Mot. at 6.

Mot. at 5-6.

Defendants’ argument that

See FAC ¶ 18(i).

Plaintiff supports

This single instance

Plaintiff can proceed under Monell liability

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improper policy that led to her suffering more abuse than she

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would have without interacting with the officers.

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not, however, plead facts to support that Sanger had an

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impermissible policy that violated Plaintiff’s due process

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rights.

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against the city of Sanger is dismissed with leave to amend.

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Plaintiff does

Therefore, Plaintiff’s due process cause of action

2.

Plaintiff’s Equal Protection Claims Against the
Cities

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The equal protection clause of the Fourteenth Amendment

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requires government actors to treat similarly situated people

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alike.

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439 (1985).

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protection must allege that she was treated differently from

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others in a similar position.

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
Thus, a plaintiff alleging a violation of equal

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Plaintiff alleges that Clovis and Sanger violated her

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“constitutional right to have police services administered in a

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nondiscriminatory manner.”

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CPD and SPD each had a “widespread custom or practice of failing

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to provide appropriate and non-discriminatory services to

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domestic violence victims.”

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that she is in a “class of domestic violence victims who are

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overwhelmingly female.”

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plaintiffs to proceed on the theory that a municipality violated

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equal protection by not treating domestic violence victims the

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same as victims of other types of abuse.

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City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984); Dudosh v.

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City of Allentown, 722 F. Supp. 1233 (E.D. Pa. 1989).

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however, Plaintiff does not provide enough facts to support her

FAC ¶ 23.

Plaintiff alleges that the

Id. ¶ 25.

Id. ¶ 26.

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Plaintiff also states

Other courts have allowed

See e.g. Thurman v.

Here,

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claim that she as a victim of domestic violence was treated any

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differently by the CPD or SPD from victims of other crimes.

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Plaintiff’s equal protection claim against Sanger and Clovis are

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dismissed with leave to amend.

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B.

Plaintiff’s Second Claim for Relief

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Plaintiff’s second claim for relief is actually two causes

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of action brought against several defendants.

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equal protection claims and due process claims against

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Hershberger, Santillan, High, Yambupah, Salazar, and Sanders.

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Plaintiff brings

FAC at 16.

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Defendants argue that the statute of limitations applicable

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to § 1983 claims bars Plaintiff’s claims against Hershberger and

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Santillan.

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Plaintiff’s complaint was filed on May 4, 2015, which is more

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than two years after Plaintiff’s May 2, 2013 interaction with

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Hershberger and Santillan.

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complaint on May 1, 2015 (see Doc. #1).

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against Hershberger and Santillan are not time-barred.

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Mot. at 12.

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Defendants erroneously state that

Mot. at 12.

But Plaintiff filed her
Thus, Plaintiff’s claims

Plaintiff’s Due Process Claims Against Individual
Defendants

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Plaintiff brings her due process claims against the officers

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under the “state-created danger” doctrine.

FAC ¶ 28.

Typically,

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state actors do not have an affirmative duty to protect

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individuals from danger.

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Soc. Servs., 489 U.S. 189, 196 (1989).

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required to protect an individual if the “state official

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participated in creating a dangerous situation and acted with

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deliberate indifference to the known or obvious danger in

DeShaney v. Winnebago Cnty Dept. of

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A state actor may be

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subjecting the plaintiff to it.”

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896 (9th Cir. 1996).

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L.W. v. Grubbs, 92 F.3d 894,

Plaintiff alleges that defendants Hershberger, Santillan,

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Yambupah, Salazar, and Sanders responded to Plaintiff’s calls to

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the SPD and CPD for alleged domestic violence “without providing

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her with the benefits to which she was entitled as a domestic

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violence victim and thereby exposed her to even greater danger

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than if they had never responded at all.”

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argue that while they did not necessarily exemplify perfect

FAC ¶ 39.

Defendants

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performance, their failure to inform Plaintiff about her rights

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as a domestic violence victim did not amount to a constitutional

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violation.

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Mot. at 10-11.

Taking Plaintiff’s allegations as true, Plaintiff suffered

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more abuse by KP than she would have if the officers from the CPD

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and SPD had not shown up at all.

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defendants Hershberger and Santillan, Plaintiff alleges that

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their “failure to provide [Plaintiff] with the services she was

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entitled to as a victim of domestic violence” led to Plaintiff

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“suffer[ing] further physical and emotional abuse from [KP].”

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FAC ¶ 18(b).

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Plaintiff alleges that their failure to arrest KP or provide

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Plaintiff with resources afforded to domestic violence victims on

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the morning on June 4, 2013 “resulted in [Plaintiff] being beaten

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and sexually assaulted again” later that day.

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to defendant High, Plaintiff alleges that High’s actions placed

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Plaintiff in danger of abuse that she would not have suffered had

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High not told KP about Plaintiff’s calls to the CPD.

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¶ 18(h).

See infra Part II(A).

As to

As to defendants Yambupah, Salazar, and Sanders,

Id. ¶ 18(i).

Id.

These facts sufficiently allege that each of the
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As

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individually named defendants violated Plaintiff’s due process

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rights by putting her in greater danger than she would have been

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without the state action.

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motion to dismiss the due process claims against the named

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individual defendants.

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2.

Thus, the Court denies defendants’

Plaintiff’s Equal Protection Claims Against
Individual Defendants

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As discussed above with respect to Plaintiff’s equal
protection claims against Clovis and Sanger, Plaintiff does not

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allege any facts which support a claim that she was treated

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differently from any others similarly situated.

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Plaintiff’s equal protection claims against the individual

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defendants are dismissed with leave to amend.

Therefore,

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C.

Plaintiff’s Fourth Cause of Action

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Plaintiff brings her fourth cause of action against Clovis

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and Sanger under 28 U.S.C. § 2201, which authorizes a district

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court to grant declaratory relief.

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declaration that her equal protection and substantive due process

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rights were violated.

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Plaintiff’s equal protection and due process causes of action.

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Plaintiff need only ask for declaratory relief in her prayer for

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relief, rather than pleading it as a separate cause of action.

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As such, Plaintiff’s fourth claim for relief is dismissed without

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prejudice as to each of the defendants who brought this motion to

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dismiss.

Id. ¶ 37.

FAC at 19.

Plaintiff seeks a

This claim duplicates

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D.

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Plaintiff’s brings her eleventh claim for injunctive and

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Plaintiff’s Eleventh Cause of Action

declaratory relief against all defendants under California Code
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of Civil Procedure §§ 526, 1060.

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lifetime injunction against KP, Mr. Pennington, and Mrs.

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Pennington.

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request for injunctive relief against the Penningtons also

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entitles her to injunctive relief against Clovis, Sanger, and the

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individual defendants who were employed by the CPD and SPD.

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such, Plaintiff’s eleventh claim for relief is dismissed against

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all the moving defendants herein with leave to amend.

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E.

FAC ¶ 67.

FAC at 24.

Plaintiff seeks a

Plaintiff does not explain how her

As

Plaintiff’s Request For Punitive Damages

Plaintiff requests punitive damages against only “each named

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individual defendant[].”

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not) seek punitive damages against Clovis or Sanger, because a

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municipality is immune from punitive damages under § 1983.

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Newport v. Fact Concerts, Inc., 45 U.S. 247, 271 (1981).

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FAC at 25.

Plaintiff cannot (and does

Conversely, an individual defendant can be liable for

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punitive damages under § 1983 “when [the] defendant’s conduct is

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shown to be motivated by evil motive or intent, or when it

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involves reckless or callous indifference to the federally

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protected rights of others.”

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(1983).

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“evil motive or intent,” but she has alleged and provided facts

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to support allegations that the individual defendants acted with

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“reckless or callous indifference” to her rights.

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II(B)(1).

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motion to dismiss Plaintiff’s request for punitive damages

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against the individual defendants from the FAC.

Smith v. Wade, 461 U.S. 30, 56

Plaintiff has not alleged that any defendants acted with

See infra Part

As such, the Court denies the moving defendants’

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III. ORDER
For the reasons set forth above, the Court GRANTS IN PART

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AND DENIES IN PART Defendants’ motion to dismiss.

The Court

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dismisses without prejudice: 1) the first claim for relief

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against Sanger for due process violations, 2) the first claims

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for relief against Clovis and Sanger for equal protection

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violations, 3) the second claims for relief against Hershberger,

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Santillan, High, Yambupah, Salazar, and Sanders for equal

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protection violations, 4) Plaintiff’s fourth cause of action

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against all defendants who brought this motion, and

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5) Plaintiff’s eleventh cause of action against all defendants

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who brought this motion.

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to dismiss Plaintiff’s claims for due process violations against

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Clovis and the individual defendants and denies the motion to

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dismiss Plaintiff’s request for punitive damages.

The Court denies the defendants’ motion

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If Plaintiff elects to amend any of the claims dismissed

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herein, she shall file her Second Amended Complaint within twenty

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days of the date of this Order.

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responsive pleadings within twenty days thereafter.

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elects not to file an amended complaint, this case shall proceed

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on the remaining claims in the FAC and Defendants shall file

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their Answers to the FAC within thirty days from the date of this

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Order.

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Defendants shall file their

IT IS SO ORDERED.
Dated:

January 5, 2016

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If Plaintiff