Palmer v. Iosefa et al

Filing 17

ORDER on 10 Defendants' Motion to Dismiss Complaint for Damages. 1) Defendants' Motion to Dismiss Complaint For Damages (Doc. 10) is GRANTED IN PART and DENIED IN PART; 2) Plaintiff's claims against Defendant CHP Officer Crewes (err oneously named Crelose) are DISMISSED with leave to amend; 3) Plaintiff's claims against Defendant CHP Officer McConnell are DISMISSED with leave to amend; 4) Plaintiff's claim for violation of the Fourteenth Amendment under 42 U.S.C. § ; 1983 against Defendant CHP Officer Iosefa is DISMISSED with prejudice and without leave to amend; and 5) Plaintiff may file a First Amended Complaint within 14 days of the date of this order. Order signed by Magistrate Judge Sheila K. Oberto on 9/22/2016. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT PALMER,

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Case No. 1:16-cv-00787-SKO

Plaintiff,

ORDER ON DEFENDANTS’ MOTION TO
DISMISS COMPLAINT FOR DAMAGES

v.
CALIFORNIA HIGHWAY PATROL
OFFICER IOSEFA, CALIFORNIA
HIGHWAY PATROL OFFICER CRELOSE,
CALIFORNIA HIGHWAY PATROL
OFFICER MCCONNELL, and DOES 1 to 10,
inclusive,

(Doc. 10)

Defendants.
_____________________________________/

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I.

INTRODUCTION

Plaintiff Robert Palmer filed this civil rights action under 42 U.S.C. § 1983 on June 7,

20 2016. This action is proceeding on Plaintiff’s complaint against Defendants California Highway
21 Patrol (“CHP”) Officer Iosefa (“Iosefa”), CHP Officer Crewse (“Crewse,” erroneously named as
22 “Crelose”), CHP Officer McConnell (“McConnell”), and Does 1 through 10, inclusive, for the
23 following: (1) unlawful detention and arrest in violation of the Fourth Amendment against
24 Defendants Iosefa, Crewes, and McConnell (“First Claim for Relief”); (2) excessive force in
25 violation of the Fourth Amendment against Defendant Iosefa (“Second Claim for Relief”); (3)
26 violation of substantive due process rights under the Fourteenth Amendment against Defendants
27 Iosefa, Crewes, and McConnell (“Third Claim for Relief”); (4) supervisory liability under section
28 1983 against the Doe Defendants (“Fourth Claim for Relief”); (5) common law battery against

1 Defendant Iosefa (“Fifth Claim for Relief”); (6) common law false arrest/imprisonment against
2 Defendants Iosefa, Crewes, and McConnell (“Sixth Claim for Relief”), (7) common law
3 negligence against Defendants Iosefa, Crewes, and McConnell (“Seventh Claim for Relief”), and
4 (8) violation of California Civil Code § 52.1, also known as the “Bane Act,” against Defendants
5 Iosefa, Crewes, and McConnell (“Eighth Claim for Relief”). (Doc. 1 (Complaint).)
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On August 11, 2016, Defendants Iosefa, Crewse, and McConnell filed a motion to dismiss

7 the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 10 (Mot. to Dismiss.)
8 Plaintiff filed his opposition on September 7, 2016, and Defendants filed their reply on September
9 14, 2016. (Docs. 14-15.) After having reviewed the parties’ papers, the matter was deemed
10 suitable for decision without oral argument pursuant to Local Rule 230(g), and the Court vacated
11 the hearing set for September 21, 2016. (Doc. 16.)
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For the reasons set forth below, Defendants’ motion to dismiss is DENIED IN PART AND

13 GRANTED IN PART.1
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II.

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FACTUAL BACKGROUND2

Plaintiff is a Detective with the Department of Insurance, Fraud Division of the State of
California. (Doc. 1 (Complaint), ¶ 17.) On June 30, 2015, Plaintiff was driving home to Fresno
from Los Angeles, traveling in the first lane of northbound State Road 99. (Id., ¶¶16, 18.) At
approximately 10 p.m., a marked CHP unit initiated a traffic stop on Plaintiff’s vehicle. (Id., ¶
18.) Plaintiff immediately pulled to the side of the road and momentarily flashed his rear-facing
emergency equipment to alert the CHP officer that Plaintiff was an on-duty officer in a police
vehicle. (Id., ¶ 19.) Plaintiff also placed both of his hands on top of the steering wheel with his
fingers open and identified himself as an on-duty officer. (Id., ¶ 20.)

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Defendant Iosefa approached Plaintiff’s vehicle and “immediately became agitated.” (Id.,

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¶ 21.) After seeing Plaintiff’s badge, Defendant Iosefa told Plaintiff that having a badge “meant

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The parties consented to the jurisdiction of a U.S. Magistrate Judge for all purposes. (Docs. 6, 9.)
The Court is required to accept as true all factual allegations in the amended complaint when resolving a Rule
12(b)(6) motion. See Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008). Accordingly, the factual
background section is derived from the factual allegations of the complaint (unless otherwise noted) and will be used
to resolve this motion only.
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1 nothing to him,” and started asking Plaintiff how much alcohol he had consumed that night. (Id.,
2 ¶¶ 22-23.) Plaintiff had not consumed any alcohol and told Defendant Iosefa the same. (Id., ¶ 23.)
3 Defendant Iosefa instructed Plaintiff to keep his hands up and exit the vehicle. (Id., ¶ 24.)
4 Plaintiff complied and exited the vehicle. (Id., ¶ 25.)
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“Suddenly, and without warning,” Defendant Iosefa “violently grabbed” both of Plaintiff’s

6 hands from the top of his head and pulled them in “an aggressive motion” into a handcuffing
7 position. (Id., ¶ 26.) Plaintiff “immediately felt a ‘pop’ in his left shoulder.” (Id., ¶ 27.)
8 Defendant Iosefa handcuffed Plaintiff and detained him on the highway shoulder. (Id., ¶ 28.)
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“After some time,” Defendants Crewes and McConnell arrived on scene. (Id., ¶ 29.) Both

10 Defendants Crewes and McConnell “stated that they had been called to determine if Plaintiff was
11 under the influence of alcohol.” (Id., ¶ 30.) Plaintiff explained to Defendants Crewes and
12 McConnell that he was an on-duty officer and he had not been drinking. (Id., ¶ 31.) Despite this,
13 Plaintiff “remained detained on the highway shoulder for a total of approximately 30 minutes.”
14 (Id., ¶ 32.)
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“Eventually,” Defendant Iosefa removed Plaintiff’s handcuffs and stated to Plaintiff, “Let’s

16 work this out mano y mano.” (Id., ¶ 33.) Plaintiff “ignored [Defendant] Iosefa, got back into his
17 vehicle, and left the scene.” (Id., ¶ 34.) On August 6, 2015, Plaintiff filed a complaint with
18 respect to the incident with the CHP. (Id., ¶ 35.)
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IV.

MOTION TO DISMISS STANDARD

A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a

21 claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of
22 sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d
23 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6)
24 motion, a court’s review is generally limited to the operative pleading. Daniels-Hall v. National
25 Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir.
26 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Schneider v.
27 California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). Courts may not supply
28 essential elements not initially pled, Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014), and
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1 “‘conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to
2 dismiss for failure to state a claim,’” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806,
3 812 (9th Cir. 2010) (quoting Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)).
4

To survive a motion to dismiss, a complaint must contain sufficient factual matter,

5 accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
6 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks
7 omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969
8 (9th Cir. 2009). The Court must accept the well-pleaded factual allegations as true and draw all
9 reasonable inferences in favor of the non-moving party. Daniels-Hall, 629 F.3d at 998; Sanders,
10 504 F.3d at 910; Huynh, 465 F.3d at 996-97; Morales v. City of Los Angeles, 214 F.3d 1151, 1153
11 (9th Cir. 2000). Further,
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If there are two alternative explanations, one advanced by defendant and the other
advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a
motion to dismiss under Rule 12(b)(6). Plaintiff’s complaint may be dismissed
only when defendant’s plausible alternative explanation is so convincing that
plaintiff’s explanation is implausible. The standard at this stage of the litigation is
not that plaintiff’s explanation must be true or even probable. The factual
allegations of the complaint need only “plausibly suggest an entitlement to relief.”
. . . Rule 8(a) “does not impose a probability requirement at the pleading stage; it
simply calls for enough fact to raise a reasonable expectation that discovery will
reveal evidence” to support the allegations.

18 Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011) (internal citations omitted) (emphases in
19 original).
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In practice, “a complaint . . . must contain either direct or inferential allegations respecting

21 all the material elements necessary to sustain recovery under some viable legal theory.” Twombly,
22 550 U.S. at 562. To the extent that the pleadings can be cured by the allegation of additional facts,
23 the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern
24 California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).
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III.

DISCUSSION

Defendants contend Plaintiff’s complaint is “totally devoid of any facts stating actionable

27 conduct” that would give rise to a false arrest and detention claim under 42 U.S.C. § 1983 by
28 Defendants Crewes and McConnell. (Doc. 10, pp. 3-4 (Mot. to Dismiss).) Defendants further
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1 contend Plaintiff’s claim under the Bane Act fails for failure to plead “any specific threat,
2 intimidation, or coercion,” and Plaintiff fails to state a claim for punitive damages.3 (Id., at pp. 43 5, 7-8.) Plaintiff contends he has alleged sufficient facts to satisfy the Rule 8(a) pleading standard,
4 Fed. R. Civ. P. 8(a)(2). (Doc. 14 (Opp’n to Mot. to Dismiss).)
5 A.
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Plaintiff Fails to State a Claim for Unlawful Arrest and Detention under 42 U.S.C. §
1983 Against Defendants Crewes and McConnell.
1.

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Section 1983 Requirements

“Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person

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9 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived
10 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the
11 United States.” Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). “Section 1983 ‘is not itself
12 a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights
13 elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan,
14 443 U.S. 137, 144 n.3 (1979)). Section 1983 and other federal civil rights statutes address liability
15 “in favor of persons who are deprived of ‘rights, privileges, or immunities secured’ to them by the
16 Constitution.” Carey v. Piphus, 435 U.S. 247, 253 (1978) (quoting Imbler v. Pachtman, 424 U.S.
17 409, 417 (1976)). “The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been
18 deprived of a right ‘secured by the Constitution and laws.” Baker, 443 U.S. at 140. Stated
19 differently, the first step in a section 1983 claim is to identify the specific constitutional right
20 allegedly infringed. Albright, 510 U.S. at 271. “Section 1983 imposes liability for violations of
21 rights protected by the Constitution, not for violations of duties of care arising out of tort law.”
22 Baker, 443 U.S. at 146.
a.

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Integral Participation

“Section 1983 creates a cause of action based on personal liability and predicated upon

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Defendant also seeks dismissal of Plaintiff’s section 1983 brought under the Fourteenth Amendment (“Third Claim
for Relief”) because such claim should have been brought under the Fourth Amendment. (Doc. 10, pp. 6-7 (Motion to
Dismiss).) In his response, Plaintiff concedes that the Fourth Amendment analysis governs and agrees to dismiss his
claim for relief under the Fourteenth Amendment. Accordingly, Defendant’s Motion to Dismiss shall be GRANTED
with respect to Plaintiff’s “Third Claim for Relief” and such claim shall be dismissed with prejudice and without leave
to amend.

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1 fault; thus, liability does not attach unless the individual defendant caused or participated in a
2 constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996), cert. denied, 520
3 U.S. 1230 (1997); see Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section
4 1983 arises only upon a showing of personal participation by the defendant.”) “The inquiry into
5 causation must be individualized and focus on the duties and responsibilities of each individual
6 defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer,
7 844 F.2d at 633. Section 1983 requires that there be an actual connection or link between the
8 defendant’s actions and the deprivation allegedly suffered. See Monell v. Department of Social
9 Services, 436 U.S. 658, 692 (1978); Rizzo v. Goode, 423 U.S. 362, 376 (1976).
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A plaintiff cannot hold an officer liable “because of his membership in a group without a

11 showing of individual participation in the unlawful conduct.” Jones v. Williams, 297 F.3d 930,
12 935 (9th Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). A plaintiff must
13 “establish the ‘integral participation’ of the officers in the alleged constitutional violation.” Jones,
14 297 F.3d at 935. “‘[I]ntegral participation’ does not require that each officer’s actions themselves
15 rise to the level of a constitutional violation.” Boyd v. Benton Cty., 374 F.3d 773, 780 (9th Cir.
16 2004). It does, however, require “some fundamental involvement in the conduct that allegedly
17 caused the violation.” Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007).
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b.

Duty to Intercede

The Ninth Circuit has held that “‘police officers have a duty to intercede when their fellow

20 officers violate the constitutional rights of a suspect or other citizen.’” Cunningham v. Gates, 229
21 F.3d 1271, 1289 (9th Cir. 2000) (quoting United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir.
22 1994), rev'd on other grounds, 518 U.S. 81 (1996)). “Importantly, however, officers can be held
23 liable for failing to intercede only if they had an opportunity to intercede.” Cunningham, 229 F.3d
24 at 1289-90. “[I]f a violation happens so quickly that an officer had no ‘realistic opportunity’ to
25 intercede, then the officer is not liable for failing to intercede.” Knapps v. City of Oakland, 647 F.
26 Supp. 2d 1129, 1159 (N.D. Cal. 2009) (quoting Cunningham, 229 F.3d at 1289-90)).
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2.

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Defendants contend that Plaintiff’s complaint is devoid of facts of Defendants Crewes’s

Analysis

3 and McConnell’s integral participation in the alleged deprivation of Plaintiff’s Fourth Amendment
4 rights. (Mot. to Dismiss, 3:26-4:10; Doc. 15 (Reply to Opp’n to Mot. to Dismiss), 2:13-3:2).)
5 Defendants note the absence of facts that Defendants Crewes or McConnell played a role in
6 Plaintiff’s arrest, given Plaintiff’s allegations that Defendants Crewes and McConnell arrived at
7 the scene after Defendant Iosefa’s handcuffing of Plaintiff. (Reply to Opp’n to Mot. to Dismiss,
8 2:13-3:2.) Plaintiff responds that Defendants “had a realistic opportunity to stop the unlawful
9 detainment, but chose not to intervene.” (Opp’n to Mot. to Dismiss, 3:24-25.)
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Plaintiff’s complaint lacks facts that Defendants Crewes and McConnell were integral

11 participants in the deprivation of Plaintiff’s constitutional rights, and it does not include facts that
12 Defendants Crewes and McConnell were on notice that Defendant Iosefa had deprived or was
13 depriving Plaintiff’s constitutional rights. The complaint merely alleges that that Defendants
14 Crewes and McConnell arrived on the scene after Defendant Iosefa had handcuffed Plaintiff and
15 detained him on the side of the road, that Plaintiff “explained to [Defendant Crewes] and
16 [Defendant] McConnell that he was an on-duty officer and that he had not been drinking,” and
17 that, despite that explanation, Plaintiff remained detained on the highway shoulder. (Compl., ¶¶
18 29-32.) Defendant Crewes and Defendant McConnell neither arrested nor handcuffed Plaintiff
19 and thus did not directly participate in the alleged constitutional violation arising from the
20 handcuffing and detention. Taking Plaintiff’s allegations as true, as the Court must, that Plaintiff
21 told Defendants Crewes and McConnell he was an on-duty officer and had not been drinking
22 alcohol, such allegation alone is not sufficient to put Defendants Crewes and McConnell on notice
23 that Defendant Iosefa had detained Plaintiff “without reasonable suspicion and probable cause.”
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The complaint alleges no facts, and Plaintiff offers none, that Defendants Crewes and

25 McConnell were or should have been aware that Defendant Iosefa subjected Plaintiff to a
26 constitutional violation. Plaintiff points to no pertinent authority to obligate Defendants Crewes
27 and McConnell to discontinue Plaintiff’s detention under the alleged facts. The complaint’s claim
28 under section 1983 for unlawful detention and arrest (“First Claim for Relief”) against Defendants
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1 Crewes and McConnell fails, and Plaintiff proffers nothing to resurrect it. See Berman v. Sink,
2 No. CV F 13-0597 LJO SAB, 2013 WL 2360899, at *6 (E.D. Cal. May 29, 2013) (dismissing
3 claims for unlawful detention against a supervisor who was summoned after the defendant
4 courthouse security officer arrested and detained the plaintiff where the supervisor did not directly
5 participate in the alleged unlawful arrest or detention, and the complaint failed to allege facts
6 indicating that the supervisor was or should have been aware that his subordinate subjected the
7 plaintiff to a constitutional violation). See also Shatford v. Los Angeles Cty. Sheriff’s Dep’t, No.
8 CV 15-1767 BRO (AJW), 2016 WL 1579379, at *16 (C.D. Cal. Mar. 29, 2016), report and
9 recommendation adopted, No. CV 15-1767 BRO (AJW), 2016 WL 1573422 (C.D. Cal. Apr. 19,
10 2016) (finding courtroom bailiff not liable for failing to prevent the plaintiff’s detention where the
11 plaintiff failed to allege facts “plausibly suggesting” the bailiff knew there was no legal basis to
12 detain the plaintiff). As such, the Court must dismiss Plaintiff’s “First Claim for Relief” against
13 Defendants Crewes and McConnell.
14 B.

Plaintiff Has Adequately Pled a Claim under the Bane Act Against Defendant Iosefa.

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1.

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Cal. Civ. Code § 52.1, the “Bane Act,” prohibits any person from interfering by “threat,

Cal. Civ. Code §52.1 (the “Bane Act”)

17 intimidation, or coercion. . .with the exercise or enjoyment by any individual. . .of rights secured
18 by the Constitution or laws of the United States. . .or of the rights secured by the Constitution or
19 laws of this state. . . .” Cal. Civ. Code § 52.1(a). “The essence of a Bane Act claim is that ‘the
20 defendant, by the specified improper means (i.e., ‘threat, intimidation or coercion’), tried to or did
21 prevent the plaintiff from doing something he or she had the right to do under the law or to force
22 the plaintiff to do something that he or she was not required to do under the law.’” McFarland v.
23 City of Clovis, 163 F. Supp. 3d 798, 2016 WL 632663, at *6 (E.D. Cal. Feb. 16, 2016) (quoting
24 Jones v. Kmart Corp., 17 Cal. 4th 329, 334 (1998) and Shoyoye v. County of L.A., 203 Cal. App.
25 4th 947, 955-56 (2012)). There are two distinct elements for a Bane Act claim: (1) intentional
26 interference or attempted interference with a state or federal constitutional or legal right, and (2)
27 the interference or attempted interference was by threat, intimidation or coercion. McFarland,
28 2016 WL 632663, at *6 (citing Allen v. City of Sacramento, 234 Cal.App.4th 41 (2015)).
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1

In a search-and-seizure case, the plaintiff “must allege threats or coercion beyond the

2 coercion inherent in a detention or search in order to recover under the Bane Act.” Lyall v. City of
3 Los Angeles, 807 F.3d 1178, 1196 (9th Cir. 2015). See also Morse v. County of Merced, No. 1:164 cv-000142-DAD-SKO, 2016 WL 4000406, at *2 (E.D. Cal. July 25, 2016) (“[I]n cases alleging a
5 violation of a plaintiff’s Fourth Amendment right to be free from unlawful searches and seizures,
6 there must be some additional evidence of threat, intimidation, or coercion beyond the coercive
7 nature inherent in each and every arrest to sustain a claim under the Bane Act.”); Basilio v. City of
8 Fairfield, No. 2:16-cv-00392-JAM-EFB, 2016 WL 3753324, at *4 (E.D. Cal. July 14, 2016);
9 Stewart v. Saukkola, No. 2:16-cv-00388-KJM-EFB, 2016 WL 3418340, at *3 (E.D. Cal. June 22,
10 2016); Malott v. Placer County, No. 2:14-cv-1040-KJM-EFB, 2016 WL 538462, at *7 (E.D. Cal.
11 Feb. 11, 2016); Avila v. California, No. 1:15-cv-00996-JAM-GSA, 2015 WL 6003289, at *2 (E.D.
12 Cal. Oct. 14, 2015); Allen, 234 Cal. App. 4th at 69; Shoyoye, 203 Cal.App.4th at 960. However,
13 where an arrest is “unlawful and excessive force is applied in making the arrest, there has been
14 coercion ‘independent from the coercion inherent in the wrongful detention itself.’” McFarland,
15 2016 WL 632663, at *6 (quoting Bender v. County of Los Angeles, 217 Cal. App. 4th 968, 979
16 (2013)). See also Stewart, 2016 WL 3418340, at *3 (“[A] plaintiff may state a claim under [the
17 Bane Act] where an unlawful arrest is accompanied by the deliberate and spiteful use of excessive
18 force, such that the force constitutes coercion separate and apart from the coercion inherent in an
19 unlawful arrest.”) (internal quotations omitted).
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2.

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Defendants contend that Plaintiff’s claim for violation of the Bane Act should be dismissed

Analysis

22 because Plaintiff failed to allege “threats, intimidation or coercion” separate and independent from
23 the wrongful conduct constituting the constitutional rights violation. In response, Plaintiff asserts
24 that his Bane Act claim survives because he has properly pled a claim for excessive force under
25 the Fourth Amendment, citing Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir.)
26 (“[A] successful claim for excessive force under the Fourth Amendment provides the basis for a
27 successful claim under [the Bane Act].”), cert. denied sub nom. City of Los Angeles, Cal. v.
28 Chaudhry, 135 S. Ct. 295 (2014).
9

1

Whether under Chaudhry Plaintiff’s plausible allegations regarding Defendant Iosefa’s use

2 of excessive force alone can suffice to state a Bane Act claim is irrelevant on the facts as alleged,
3 as here Plaintiff claims that he was unlawfully arrested and detained and that Defendant Iosefa
4 used unlawful force in arresting and detaining him. Plaintiff alleges that, after had complied with
5 Defendant Iosefa’s instruction to keep his hands up and to exit his vehicle, “[s]uddenly, and
6 without warning,” Defendant Iosefa “violently grabbed both of Plaintiff’s hands from the top of
7 his head and pulled them in an aggressive motion to an handcuffing position,” then handcuffed
8 Plaintiff and detained him on the highway shoulder.” (Compl., ¶¶ 24-26, 28.) Plaintiff further
9 alleges that “when [Defendant] Iosefa violently grabbed Plaintiff’s hands from the top of his head
10 and handcuffed him, he deprived Plaintiff of his right to be secure in his person against
11 unreasonable searches and seizures as guaranteed to Plaintiff under the Fourth Amendment of the
12 United States Constitution and applied to state actors by the Fourteenth Amendment.” (Id. ¶ 44.)
13

Although the mere fact of handcuffing cannot from the basis of a Bane Act claim, see

14 Lyall, 807 F.3d at 1196, the Court finds that at the pleading stage, these allegations are sufficient
15 to state a claim for violation of the Bane Act against Defendant Iosefa.4 The force allegedly
16 applied by Defendant Iosefa constitutes coercion separate and apart from the coercion inherent in
17 an arrest: Defendant Iosefa allegedly violently grabbed both of Plaintiff’s hands from the top of
18 his head and pulled them into an aggressive motion after Plaintiff had exited his vehicle and
19 placed his hands up per Defendant Iosefa’s instructions. (Id., ¶¶ 24-26, 28.) Such force applied to
20 an unresisting Plaintiff cannot be said to constitute force inherent in an arrest. See, e.g., Stewart,
21 2016 WL 3418340, at *4; Bender, 217 Cal. App. 4th at 979. See also Avila, 2015 WL 6003289, at
22 *3 (“Plaintiffs allege they were unlawfully detained and that Defendants used excessive force in so
23 detaining them. These allegations are sufficient to support a Bane Act claim.”); Henneberry v.
24 City of Newark, No. 13-cv-05238-MEJ, 2014 WL 4978576, at *16 (N.D. Cal. Oct. 6, 2014); Bass
25 v. City of Fremont, No. C12-4943 TEH, 2013 WL 891090, at *6 (N.D. Cal. Mar. 8, 2013). Cf.
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4

As discussed above, at this stage of the pleadings, Plaintiff need only satisfy the pleading standard set forth by the
Court in Iqbal pursuant to Fed. R. Civ. P. 8(a), see 556 U.S. 662, not the more exacting standard required under Fed.
R. Civ. P. 56 for a motion for summary judgment. See Starr, 652 F.3d at 1216-17 (“Rule 8(a) ‘does not impose a
probability requirement at the pleading stage; it simply calls for enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence’ to support the allegations”).

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1 McFarland, 2016 WL 632663, at *6 (allegations that officers “violently seized and handcuffed”
2 the plaintiff were insufficient to state a claim under the Bane Act where there were no factual
3 allegations that the officers “‘violently’ touched” the plaintiff or “used excessive force while in the
4 process of handcuffing him”). Accordingly, Defendants’ motion to dismiss Plaintiff’s Bane Act,
5 Cal. Civ. Code § 52.1, claim (“Eighth Claim for Relief”) against Defendant Iosefa is denied.
6 C.

Plaintiff’s Bane Act Claim Against Defendants Crewes and McConnell Fails.

7

Plaintiff’s Bane Act claim against Defendants Crewes and McConnell, however, is subject

8 to dismissal because this Court has already found that Plaintiff has failed to allege facts sufficient
9 to support his claims under section 1983 against these defendants (see Section III.A, supra). See
10 Wilson v. City of Bakersfield, No. 1:16-cv-00387-JLT, 2016 WL 2997496, at *8 (E.D. Cal. May
11 23, 2016) (“[B]ecause Plaintiffs have failed to allege facts sufficient to support the claim for
12 unlawful arrest and excessive force, the claim for a violation of the Bane Act similarly is
13 insufficient.”). Accordingly, the Court must dismiss Plaintiff’s Bane Act claim (“Eighth Claim for
14 Relief”) against Defendants Crewes and McConnell.
15 D.
16

Plaintiff’s Common Law Claims Against Defendants Crewes and McConnell Are
Dismissed.

17

Defendants seek dismissal of Plaintiff’s California common law claims for “false

18 arrest/false imprisonment” (“Sixth Claim for Relief”) and negligence (“Seventh Claim for Relief”)
19 against Defendants Crewes and McConnell, yet they put forth no argument addressing such claims
20 and specifically why each should be dismissed. (See Docs. 10, 15.) Nevertheless, the Court has
21 considered the sufficiency of Plaintiff’s allegations with respect to these claims and finds that
22 dismissal of these claims against Defendants Crewes and McConnell is warranted.
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1.

24

“‘[F]alse arrest’ and ‘false imprisonment’ are not separate torts. False arrest is but one way

“False Arrest/False Imprisonment”

25 of committing a false imprisonment, and they are distinguishable only in terminology.” Campbell
26 v. City of Milpitas, No. 13-cv-03817-BLF, 2015 WL 1359311, at *14 (N.D. Cal. Mar. 25, 2015)
27 (quoting Collins v. City and Cty. of San Francisco, 50 Cal. App. 3d 671, 673 (1975)). “Under
28 California law, the elements of a claim for false imprisonment are: (1) the nonconsensual,
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1 intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period
2 of time, however brief.” Young v. County of Los Angeles, 655 F.3d 1156, 1169 (9th Cir. 2011)
3 (internal quotation marks and citation omitted).
4

Plaintiff’s complaint fails to plead facts that Defendants Crewes and McConnell

5 “intentionally confined” Plaintiff. Instead, Plaintiff alleges only that Defendants Crewes and
6 McConnell arrived on the scene after Defendant Iosefa had arrested and handcuffed Plaintiff and
7 that Plaintiff remained detained on the highway shoulder. Plaintiff therefore has not stated a
8 plausible claim for false imprisonment against Defendants Crewes and McConnell and the Court
9 must dismiss that claim against those defendants.
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2.

11

To plead a negligence claim, Plaintiff must allege that: (1) the defendant owed plaintiff a

Negligence

12 duty of care; (2) the defendant breached that duty by failing to use such skill, prudence, and
13 diligence as other members of the profession commonly possess and exercise, (3) that there was a
14 proximate causal connection between the defendant’s negligence conduct and the resulting injury
15 to the plaintiff; and (4) that the defendant’s negligence resulted in actual loss or damage to the
16 plaintiff. Zabala v. City of Ceres, No. 1:15-cv-00904-GEB-SAB, 2015 WL 5178391, at *5 (E.D.
17 Cal. Sept. 4, 2015) (quoting Ortega v. City of Oakland, No. C07-02659 JCS, 2008 WL 4532550,
18 at *14 (N.D. Cal. Oct. 8, 2008)).
19

Plaintiff’s allegations in support of his negligence claim are conclusory and not supported

20 by any facts showing that Defendants Crewes and McConnell breached any duty of care owed to
21 Plaintiff. See, e.g., Basilio, 2016 WL 3753324, at *5. In addition, Plaintiff fails to allege that the
22 negligence of Defendants Crewes and McConnell caused him injury. (See Compl. ¶ 81 (“As a
23 direct and proximate cause of Iosefa’s conduct, Plaintiff sustained injuries. . . .”) (emphasis
24 added.) Thus, Plaintiff fails to plead a common law negligence claim against Defendants Crewes
25 and McConnell and the Court must dismiss that claim against those defendants.
26 E.
27

Plaintiff Has Adequately Pled Sufficient Facts to Support a Claim for Punitive
Damages Against Defendant Iosefa Only.

28

Finally, Defendants argue that Plaintiff has failed to plead sufficient facts to support a
12

1 claim for punitive damages against Defendants Iosefa, Crewes, and McConnell, presumably with
2 respect to any of his causes of action. Plaintiff argues the allegations that Defendants “handcuffed
3 and detained [him] (or failed to intervene) for an extended period of time on the side of the
4 highway, despite the fact that [he] had done nothing wrong” are sufficient to sustain a punitive
5 damages claim because they that defendants acted in reckless disregard of plaintiff’s constitutional
6 rights. (Opp’n to Mot. to Dismiss, 4:22-28.)
7

“The standard for punitive damages under § 1983 mirrors the standard for punitive

8 damages under common law tort cases.” Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005). See
9 Morse, 2016 WL 3254034, at *15. “[M]alicious, wanton, or oppressive acts or omissions are
10 within the boundaries of traditional tort standards for assessing punitive damages and foster
11 ‘deterrence and punishment over and above that provided by compensatory awards.’” Dang, 422
12 F.3d at 807 (quoting Smith v. Wade, 461 U.S. 30, 54 (1983)).
13

Here, if the facts as alleged in Plaintiff’s complaint as set forth above are proven, a

14 reasonable jury could find Defendant Iosefa’s behavior to be malicious, wanton, or oppressive.
15 Accordingly, Defendants are entitled to dismissal of Plaintiff’s punitive damages claim against
16 Defendants Crewes and McConnell only.
17 F.

Leave to Amend Will be Granted.

18

Plaintiff’s claims against Defendants Crewes and McConnell must be dismissed for failure

19 to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). However, courts are free to grant a party
20 leave to amend whenever “justice so requires,” Fed. R. Civ. P. 15(a)(2), and requests for leave
21 should be granted with “extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d
22 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079
23 (9th Cir.1990)); see Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). “[A] district
24 court should grant leave to amend even if no request to amend the pleading was made, unless it
25 determines that the pleading could not possibly be cured by the allegation of other facts.” Lacey v.
26 Maricopa Cty., 693 F.3d 896, 926 (9th Cir. 2012) (quoting Doe v. United States, 58 F.3d 494, 497
27 (9th Cir. 1995).
28 //
13

Out of an abundance of caution, leave to amend Plaintiff’s First, Sixth, Seventh, and

1

2 Eighth Claim for Relief against Defendants Crewes and McConnell will be granted to correct the
3 deficiencies discussed above. Plaintiff is reminded that to survive a motion to dismiss, the
4 complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is
5 plausible on its face” – “labels and conclusions” or “a formulaic recitation of the elements of a
6 cause of action will not do.” Iqbal, 556 U.S. at 678 (internal citations omitted).
7

V.

CONCLUSION

8

For the reasons set forth above, it is HEREBY ORDERED that:

9

1.

10

Defendants’ Motion to Dismiss Complaint For Damages (Doc. 10) is GRANTED
IN PART and DENIED IN PART;

11

2.

Plaintiff’s claims against Defendant CHP Officer Crewes (erroneously named
“Crelose”) are DISMISSED with leave to amend;

12
13

3.

14

Plaintiff’s claims against Defendant CHP Officer McConnell are DISMISSED with
leave to amend;

15

4.

Plaintiff’s claim for violation of the Fourteenth Amendment under 42 U.S.C. §

16

1983 against Defendant CHP Officer Iosefa is DISMISSED with prejudice and

17

without leave to amend; and

18

5.

19

Plaintiff may file a First Amended Complaint within 14 days of the date of this
order.

20
21

IT IS SO ORDERED.

22 Dated:
23

September 22, 2016

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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14

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