Oliveira v. County of Madera et al

Filing 4

ORDER DISMISSING Plaintiff's Complaint with 30 Days Leave to Amend. Within 30 days from the date of service of this order, Plaintiff shall file a first amended complaint. If Plaintiff fails to file a first amended complaint in compliance with this order, this action will be recommended for dismissal for failure to state a claim upon which relief can be granted. Order signed by Magistrate Judge Sheila K. Oberto on 2/9/2017. (Thorp, J)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 JOHN OLIVEIRA, 15 16 17 ORDER DISMISSING PLAINTIFF’S COMPLAINT WITH 30 DAYS LEAVE TO AMEND Plaintiff, 13 14 Case No. 1:16-cv-01626-DAD-SKO v. (Doc. 1) COUNTY OF MADERA, ET AL., Defendants. _____________________________________/ 18 19 I. 20 21 INTRODUCTION On October 28, 2016, Plaintiff John Oliveira (“Plaintiff”) filed a complaint (the 22 “Complaint”) against Madera County (“the County”); District Attorney for the County of Madera 23 David Linn (“Linn”); former District Attorney for the County of Madera Michael Kietz (“Kietz”); 24 former Sheriff for the County of Madera John Anderson (“Anderson”); Deputy District Attorney 25 for the County of Madera Nicolas Fogg (“Fogg”); and Detective for the Madera County Sheriff’s 26 Department Robert Blehm (“Blehm”). (Doc. 1.) Plaintiff is proceeding in forma pauperis and pro 27 se. For the reasons set forth below, Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE 28 and WITH LEAVE TO AMEND. II. 1 2 FACTUAL ALLEGATIONS On September 9, 2014, Plaintiff accepted a position as and was appointed Chief of Police 3 for the Chukchansi Tribal Police Department of the Picayune Rancheria of Chukchansi Indians 4 (“Tribal Police”). (Doc. 1 (“Compl.”) ¶ 25.) During the course of this employment as Chief of 5 Tribal Police, Plaintiff was asked by the Tribal Council to investigate certain events at the 6 Chukchansi Gold Resort and Casino (the “Casino”). (Id. ¶ 27.) Specifically, the Tribal Council 7 requested the Tribal Police to search for “an audit required by the National Indian Gaming 8 Commission (“NIGC”) for compliance with the Indian Gaming Regulatory Act.” (Id.) The need 9 to secure the audit was “urgent,” as the NIGC had issued a “Temporary Closure Order” for the 10 Casino if the audit was not received by October 27, 2014. (Id. ¶ 28.) The audit was being 11 withheld by a “hostile faction” of the Tribe “who had previously taken over the [C]asino by force” 12 and “occupied the offices of the Tribal Gaming Commission (“TGC”)”. (Id. ¶ 29.) 13 On or about October 3, 2014, Plaintiff requested and held a meeting with Defendant Kietz 14 at the Madera County District Attorney’s Offices. (Id. ¶ 31.) At that meeting, Plaintiff gave 15 advance notice of the Tribal Police’s intention to enter the TCG offices at the Casino in order to 16 obtain a copy of the audit. (Id. ¶ 32.) Plaintiff also “revealed the plan of operation” to Defendant 17 Kietz and provided him with copies of tribal resolutions of the Tribe and other documents 18 supporting the operation. (Id.) One such document, Tribal Resolution 2014-79, “excluded 19 Leonard Rosson and all employees of [private security company] Security Training Concepts 20 [“STC”] from all Picayune Rancheria lands, including [the Casino].” (Id. ¶ 30.) 21 Also during the October 3, 2014 meeting, Plaintiff advised Defendant Kietz of the 22 possibility that members of STC “may be detained or arrested due to their history of violence.” 23 (Id. ¶ 33.) Defendant Kietz “questioned whether the Tribal Police would have authority to arrest 24 or have jurisdiction over non-Indian agents of STC.” (Id.) On October 5, 2014, Plaintiff 25 “provided [Defendant Kietz] via email . . . with legal authority recognizing the inherent authority 26 of Tribal Police to detain and arrest non-Indians, more specifically, the arrest and detention of 27 non-Indians” in California, which is covered by Public Law 83-280 (18 U.S.C. § 1162, 28 U.S.C. 28 § 1360) (“Public Law 280”.) (Id. ¶ 34.) According to Plaintiff, Public Law 280 “confer[s] 2 1 jurisdiction on certain states, to include the State of California, over most or all of Indian country 2 within their borders . . . .” (Id. ¶ 14.) 3 On or about October 9, 2014, Plaintiff and nine (9) other members of the Tribal Police 4 went into the Casino to obtain a copy of the audit and “were confronted by armed private security 5 guards employed by the hostile faction and by . . . [STC].” (Id. ¶ 35.) Shortly after their arrival at 6 the Casino, the Tribal Police “gathered and detained several of the STC security guards for release 7 to the Madera County Sheriff’s Department” upon the Sheriff’s Department’s arrival at the 8 Casino. (Id. ¶ 36.) 9 At the scene, Defendant Anderson was provided a copy of Tribal Resolution 2014-79. (Id. 10 ¶ 37.) Defendant Anderson “made no attempt to discount the authority of the Tribal Police nor did 11 he make any attempt to obstruct [] Plaintiff/Tribal Police from carrying out his duties.” (Id. ¶ 38.) 12 “In fact, Defendant [] Anderson took the custody of the STC security guards for the hostile faction 13 from the Tribal Police and removed them from inside the [C]asino.” (Id.) “Unbeknownst to [] 14 Plaintiff, Defendant [] Anderson promptly released the hostile STC security guards on the scene 15 (outside the [C]asino), which resulted in the same STC security guards returning inside the 16 [C]asino and assaulting several Tribal Police officers within five minutes of their release.” (Id. ¶ 17 39.) 18 In the days following the October 9, 2014, incident, the Madera County Sheriff’s 19 Department along with the District Attorney’s Office “initiated an investigation into whether [] 20 Plaintiff and the nine sworn Tribal Police officers violated California state law in the performance 21 of their duties.” (Id. ¶ 40.) During the course of the investigation, Defendant Blehm made “an 22 informal inquiry” with the Office of Justice Services of the Bureau of Indian Affairs, Plaintiff’s 23 former employer, “requesting any and all disciplinary information pertaining to [] Plaintiff.” (Id. 24 ¶¶ 20, 68.) In response to the request, the Chief of Internal Affairs for the Office of Justice 25 Services of the Bureau of Indian Affairs wrote a letter to the Madera County Sheriff’s Department 26 that “disclosed inaccurate and false information about Plaintiff and certain alleged investigations 27 by Internal Affairs Department of Plaintiff’s conduct.” (Id. ¶ 69.) On or about November 11, 28 2014, the Madera County Sheriff’s department provided a copy of the letter to a local Fresno news 3 1 station “where the information was aired to the public during an evening newscast.” (Id. ¶ 70.) 2 On October 31, 2014, Defendant Kietz “filed a criminal complaint against Plaintiff (and 3 nine other Tribal Police officers) alleging 27 felony counts to include kidnapping, false 4 imprisonment, assault with a firearm, and illegal use of a stun gun.” (Id. ¶ 41.) According to 5 Plaintiff, the criminal complaint “was filed only days prior to the local election in which 6 Defendant Kietz was running for re-election as Madera County District Attorney” and was filed 7 “in an attempt to increase his support from constituents.” (Id. ¶¶ 47–48.) Plaintiff alleges that 8 “[t]his suspicion was confirmed by Defendant [] Linn . . . who was quoted in the local newspaper 9 as calling the criminal complaint filed by Defendant Kietz, as a political decision and not one in 10 the interest of justice.” (Id. ¶ 49.) According to Plaintiff, “[n]o specific wrong doing [sic] was 11 alleged” in the Madera County Sheriff’s Department’s “one hundred forty-one (141) page crime 12 report,” and Plaintiff is listed only on two occasions, “both of which describe [] Plaintiff [] as 13 doing nothing more than carrying a clipboard.” (Id. ¶ 50.) 14 “An arrest warrant was issued for Plaintiff on or about October 31, 2014,” and “[o]n or 15 about November 9, 2014, Plaintiff turned himself into authorities and was placed in the Madera 16 County jail until he posted bail.” (Id. ¶¶ 51–52.) Plaintiff alleges that “[d]uring the initial 17 appearance [] Plaintiff’s bail was raised from $1,200,000 to $1,400,000 through the 18 recommendation of [Defendant Fogg] despite [] Plaintiff’s lack of involvement in the false 19 allegations and [] Plaintiff’s law abiding and honorable background as a former law enforcement 20 officer and U.S. Army veteran.” (Id. ¶ 111.) Plaintiff alleges that he suffered a loss of “over 21 $100,000 required by a bonding company in order to post bail and be released from jail.” (Id. ¶ 22 54.) According to Plaintiff, on or about November 19, 2015, “all charges listed in the criminal 23 company were dismissed in favor of [] Plaintiff.” (Id. ¶ 55.) 24 Based on these allegations, Plaintiff brings causes of action under 42 U.S.C. § 1983 25 alleging Fourth Amendment claims for malicious prosecution, and claims for “arrest without 26 probable cause” and “false arrest.” Plaintiff also alleges claims for “violation of privacy/unlawful 27 disclosure,” “failure to properly train,” “violation of Eighth Amendment,” as well as causes of 28 action under the California Tort Claims Act alleging claims for negligent infliction of emotional 4 1 distress, intentional infliction of emotional distress, negligent interference with prospective 2 economic relations, and intentional interference with prospective economic relations. 3 III. SCREENING STANDARD 4 5 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 6 each case, and shall dismiss the case at any time if the Court determines that the allegation of 7 poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon 8 which relief may be granted, or seeks monetary relief against a defendant who is immune from 9 such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a 10 claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be 11 cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 12 The Court’s screening of the Complaint under 28 U.S.C. § 1915(e)(2) is governed by the 13 following standards. A complaint may be dismissed as a matter of law for failure to state a claim 14 for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 15 legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff 16 must allege a minimum factual and legal basis for each claim that is sufficient to give each 17 defendant fair notice of what plaintiff’s claims are and the grounds upon which they rest. See, 18 e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 19 F.2d 795, 798 (9th Cir. 1991). 20 In determining whether a complaint states a claim on which relief may be granted, 21 allegations of material fact are taken as true and construed in the light most favorable to the 22 plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Moreover, since 23 plaintiff is appearing pro se, the Court must construe the allegations of the Complaint liberally and 24 must afford plaintiff the benefit of any doubt. See Karim–Panahi v. Los Angeles Police Dep’t, 25 839 F.2d 621, 623 (9th Cir. 1988). However, “the liberal pleading standard . . . applies only to a 26 plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal 27 interpretation of a civil rights complaint may not supply essential elements of the claim that were 28 not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) 5 1 (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 2 Further, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 3 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 4 action will not do . . . . Factual allegations must be enough to raise a right to relief above the 5 speculative level.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal 6 citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (To avoid dismissal for 7 failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to 8 ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the 9 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 10 defendant is liable for the misconduct alleged.”) (internal citations omitted). 11 IV. DISCUSSION 12 A. Plaintiff’s Claims Under 42 U.S.C. § 1983 Shall Be Dismissed. 13 1. 14 15 Defendants Linn, Kietz, Anderson, Fogg, and Blehm Sued for Damages in Their Official Capacities Are Not “Persons” Under § 1983. In pertinent part, 42 U.S.C. § 1983 provides that “[e]very person who, under color of any 16 statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 17 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person 18 within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured 19 by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, 20 or other proper proceeding for redress . . . .” (emphasis added). 21 Plaintiff’s causes of action under § 1983 are brought against Defendants Linn, Kietz, 22 Anderson, Fogg, and Blehm in their “official capacity.” (Compl. ¶¶ 2–8.) “[S]tate officials sued 23 in their official capacities . . . are not ‘persons’ within the meaning of § 1983 . . . .” Flint v. 24 Dennison, 488 F.3d 816, 825 (9th Cir. 2007); see also Will v. Mich. Dep’t of State Police, 491 25 U.S. 58, 71 (1989). In addition, “[t]he Eleventh Amendment bars actions for damages against 26 state officials who are sued in their official capacities in federal court.” Dittman v. California, 191 27 F.3d 1020, 1026 (9th Cir. 1999). By contrast, a state official sued in his official capacity for 28 “prospective injunctive relief” is considered a “person” under § 1983, and the Eleventh 6 1 Amendment does not bar such claims. See Flint, 488 F.3d at 825. 2 Plaintiff seeks money damages against Defendants Linn, Kietz, Anderson, Fogg, and 3 Blehm, not prospective injunctive relief.1 (Compl. at 14 (“Prayer for Relief”).) Plaintiff’s § 1983 4 claims against Defendants Linn, Kietz, Anderson, Fogg, and Blehm in their official capacities are 5 therefore not cognizable. 6 Plaintiff, however, alleges in his Complaint: 7 Upon information and belief, all above-named Defendants, were acting within their official capacity and within the course and scope of their authority and employment at all relevant times herein (collectively the “Defendants”). If it turns out through discovery that these employee/defendants were not acting within their official capacities and/or not within the course and scope of their employment, Plaintiff will seek to amend or conform this complaint to the evidence. 8 9 10 11 12 (Id. ¶ 8.) Accordingly, the Court will grant Plaintiff leave to amend his complaint to attempt to 13 state claims under § 1983 against the named individual defendants in their personal capacities. 14 “Personal-capacity suits seek to impose personal liability upon a government official for actions 15 he takes under color of state law.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). Liability in a 16 personal-capacity suit can be demonstrated by showing that the official, acting under color of state 17 law, caused the deprivation of a federal right. See id. at 166. 18 To the extent Plaintiff wishes to proceed with his malicious prosecution claim under 19 § 1983 against the individual defendants in their personal capacities, a plaintiff must plead tortious 20 conduct by the defendant under the elements of a state law malicious prosecution claim, as well as 21 allege that the defendants acted under color of state law for the purpose of denying the plaintiff 22 equal protection or another a specific constitutional right. Poppell v. City of San Diego, 149 F.3d 23 951, 961 (9th Cir. 1998); see also Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 24 2004) (“In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff must show that 25 the defendants prosecuted [him] with malice and without probable cause, and that they did so for 26 the purpose of denying [him] equal protection or another specific constitutional right.”); Usher v. 27 28 1 Plaintiff also seeks injunctive relief, but does so only against Defendant County of Madera. (See Compl. at 14 (“Prayer for Relief”).) 7 1 City of L.A., 828 F.2d 556, 562 (9th Cir. 1987) (a malicious prosecution claim is not generally 2 cognizable federally if the state judicial system provides a remedy, but “an exception exists to the 3 general rule when a malicious prosecution is conducted with the intent to deprive a person of equal 4 protection of the laws or is otherwise intended to subject a person to a denial of constitutional 5 rights”). In addition, in order to prevail on a malicious prosecution claim under § 1983, the 6 plaintiff must establish that the prior proceedings terminated in such a manner as to indicate his 7 innocence, and that charges were not withdrawn on the basis of a compromise among the parties. 8 Awabdy, 368 F. 3d at 1068 (emphasis added). See also Sanders v. Matthew, No. 15-CV-395 LJO9 EPG, 2016 WL 7210115, at *4 (E.D. Cal. Dec. 12, 2016) (dismissing the plaintiff’s malicious 10 prosecution claim where the plaintiff pleaded nolo contendere to a misdemeanor charge, resulting 11 in a felony charge being dismissed, because the allegations showed that the proceedings had not 12 “terminated in such a manner as to indicate his innocence.”). 13 Finally, state prosecutors are entitled to absolute prosecutorial immunity from claims under 14 §1983 when they are acting pursuant to their official role as advocates for the state performing 15 functions “intimately associated with the judicial phase of the criminal process.” Imbler v. 16 Pachtman, 424 U.S. 409, 430 (1976). Courts have held that the filing of a criminal complaint in 17 state court is an activity protected by absolute prosecutorial immunity. See, e.g., Heinemann v. 18 Satterberg, 731 F.3d 914, 916 (9th Cir. 2013) (upholding district court’s finding on summary 19 judgment that the decision to file a criminal complaint against the defendant in state court was 20 protected by absolute prosecutorial immunity.); Geiche v. City & Cty. of San Francisco, No. C 21 08–3233 JL, 2009 WL 1948830, at *4 (N.D. Cal. July 2, 2009) (“Here, named defendant Steger is 22 alleged to have done (and in fact did) nothing more than sign the charging instrument against 23 Plaintiff. Filing the criminal complaint was an essential part of instigating the criminal 24 prosecution and such conduct is entitled to absolute immunity.”) (citing Demery v. Kupperman, 25 735 F.2d 1139, 1144 (9th Cir. 1984); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 26 675, 679 (9th Cir.1984); Freeman on Behalf of the Sanctuary v. Hittle, 708 F.2d 442, 443 (9th Cir. 27 1983)). 28 // 8 1 2. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s § 1983 Claims Against Defendant County of Madera (Counts I– III), as well as His “Failure to Properly Train” Claim (Count IX), Are Insufficiently Pleaded. Under longstanding Supreme Court authority, a municipality cannot be held liable under § 1983 simply because it employs an individual accused of, or who has engaged in, illegal or unconstitutional conduct. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978) (holding that “[a] municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory”); see also Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997) (“[I]t is not enough [under Monell ] for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.”). Because there is no respondeat superior liability under § 1983, counties and municipalities may be sued under § 1983 only upon a showing that an official policy or custom caused the constitutional tort. See Monell, 436 U.S. at 691. “A local government entity cannot be held liable under § 1983 unless the plaintiff alleges that the action inflicting injury flowed from either an explicitly adopted or a tacitly authorized [governmental] policy.” Ortez v. Washington Cty., State of Or., 88 F.3d 804, 811 (9th Cir. 1996) (citation and quotations omitted) (alteration in original). “[L]ocal governments, like any other § 1983 ‘person,’ . . . may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690–91. A local governmental entity may also “be liable if it had a policy or custom of failing to train its employees and that failure to train caused the constitutional violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 123 (1992). “In particular . . . the inadequate training of police officers could be characterized as the cause of the constitutional tort if—and only if—the failure to train amounted to ‘deliberate indifference’ to the rights of persons with whom the police come into contact.” Id. (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). Plaintiff’s Complaint does not allege that a policy or custom existed to cause the alleged malicious prosecution (Count I), the “Arrest Without Probable Cause” (Count II), or the “False 9 1 Arrest” (Count III) by Madera County employees. Elsewhere in the Complaint, however, Plaintiff 2 purports to bring a claim for “Failure to Properly Train” (Count IX), but does not identify the 3 statutory or common law basis for this claim. In the absence of any specified legal basis, “Failure 4 to Properly Train” is not a cognizable claim. However, by alleging in Count IX that “Defendants failed to properly train sheriff’s 5 6 department and district attorney personnel in Public Law 280 resulting in negligent and criminal 7 behavior” (Compl. ¶ 108), it appears that Plaintiff is attempting in Count IX to state a claim 8 against Defendant County of Madera under § 1983 for municipal liability. Accordingly, the Court 9 shall dismiss Plaintiff’s § 1983 claims against Defendant County of Madera without prejudice and 10 with leave to amend in order to afford Plaintiff an opportunity to attempt to state a claim under § 11 1983 against the County for injury caused by an official policy or custom. 12 B. 13 Plaintiff’s Claim for “Violation of Privacy/Unlawful Disclosure” Is Subject to Dismissal (Count IV). 14 Plaintiff purports to bring a claim for “Violation of Privacy/Unlawful Disclosure,” alleging 15 that the Madera County Sheriff’s Department released his personnel records, which it received 16 from Plaintiff’s former employer the Office of Justice Services of the Bureau of Indian Affairs in 17 response to Defendant Blehm’s “informal inquiry,” to a local news station that aired the 18 information to the public during an evening newscast. (Compl. ¶¶ 68–70.) Plaintiff alleges 19 further that “Defendants violated California state statutes by releasing such information and also 20 had a duty of care to protect such information from disclosure.” (Id. ¶ 72.) Plaintiff, however, does not identify what “California state statutes” or allege facts 21 22 describing the extent or the source of the “duty of care to protect such information from 23 disclosure” that Defendants are alleged to have breached. “A complaint which lacks allegations of 2 24 fact to show that a legal duty of care was owed is fatally defective.” Crescent Woodworking Co., 25 Ltd. v. Accent Furniture, Inc., No. EDCV 04–01318 DDP (PJWx), 2005 WL 5925586, at *4 (C.D. 26 Cal. Dec. 6, 2005) (quoting Hegyes v. Unjian Enter., Inc., 234 Cal. App. 3d 1103 (1991)). In 27 28 2 It appears that Plaintiff is attempting in Count IV to allege a negligence claim under California law, the elements of which are: (1) the existence of a duty to exercise due care; (2) breach of that duty; (3) causation; and (4) damages. See Merrill v. Navegar, Inc., 26 Cal. 4th 465, 500 (2001). 10 1 addition, Plaintiff does he specifically identify which “Defendants” engaged in the allegedly 2 unlawful conduct. When multiple defendants are named, the plaintiff must allege the basis of his 3 claims as to each defendant; it is improper to simply lump defendants together. See Sebastian 4 Brown Prods., LLC v. Muzooka, Inc., 143 F. Supp. 3d 1026, 1037 (N.D. Cal. 2015); Flores v. 5 EMC Mortg. Co., 997 F. Supp. 2d 1088, 1103 (E.D. Cal. 2014). The Court will dismiss Count IV 6 with leave to amend to identify the statutory basis for the claim and to allege specific facts 7 sufficient to establish the elements of such claim as to each defendant. 8 C. 9 Plaintiff’s Claims Under the California Tort Claims Act (Counts V–VIII) Shall Be Dismissed. 10 Plaintiff’s claims for negligent infliction of emotional distress (Count V), intentional 11 infliction of emotional distress (Count VI), negligent interference with prospective economic 12 relations (Count VII), and intentional interference with prospective economic relations (Count 13 VIII) are all brought pursuant to the California Tort Claims Act, Cal. Govt. Code §§ 810–996.6. 14 For the reasons set forth below, these claims shall be dismissed with leave to amend. 15 16 17 1. There is No Cause of Action under California Law for Negligent Infliction of Emotional Distress (Count V). Plaintiff’s claim for negligent infliction of emotional distress (Count V) is not cognizable 18 because there is no independent tort of negligent infliction of emotional distress under California 19 law. See Morse v. Cty. of Merced, No. 1:16-cv-00142-DAD-SKO, 2016 WL 3254034, at *12 20 (E.D. Cal. June 13, 2016) (citing Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 (1992) (“We 21 have repeatedly recognized that ‘[t]he negligent causing of emotional distress is not an 22 independent tort, but the tort of negligence.’”) (quoting Marlene F. v. Affiliated Psychiatric 23 Medical Clinic, Inc., 48 Cal. 3d 583, 588 (1989))). See also Cramer v. Consol. Freightways, Inc., 24 209 F.3d 1122, 1133 (9th Cir. 2000) (“The tort of negligent infliction of emotional distress is 25 simply a negligence claim alleging that the defendant breached a duty to protect the plaintiff’s 26 mental well-being.”); Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 (1993) (“[T]here 27 is no independent tort of negligent infliction of emotional distress.”). A negligence claim giving 28 rise to emotional distress includes “at least two variants of the theory”—“bystander” cases and 11 1 “direct victim” cases. Wooden v. Raveling, 61 Cal. App. 4th 1035, 1037 (1998). “Direct victim” 2 cases are cases in which the plaintiff's claim of emotional distress is not based upon witnessing an 3 injury to someone else, but rather arises from the breach of a duty that is assumed by the defendant 4 or imposed on the defendant as a matter of law, or that arises out of the defendant’s preexisting 5 relationship with the plaintiff. See id. at 1038; Burgess, 2 Cal. 4th at 1073; Marlene F., 48 Cal. 3d 6 at 590. In “direct victim” cases, “well-settled principles of negligence are invoked to determine 7 whether all elements of a cause of action, including duty, are present in a given case.” Burgess, 2 8 Cal. 4th at 1073. “[U]nless the defendant has assumed a duty to plaintiff in which the emotional 9 condition of the plaintiff is an object, recovery is available only if the emotional distress arises out 10 of the defendant’s breach of some other legal duty and emotional distress is proximately caused by 11 that breach of duty.” Potter, 6 Cal. 4th at 985. 12 Plaintiff alleges he was directly—as opposed to indirectly—injured by the illegal activity 13 of “Defendants.” The Complaint alleges that Defendants negligently inflicted emotional distress 14 because they “were negligent” and their “negligence was a substantial factor in causing Plaintiff’s 15 serious emotional distress.” (Compl. ¶¶76, 78.) Insofar as these allegations reflect an attempt to 16 fit the “direct victim” theory outlined above, they are wholly insufficient. At this time Plaintiff 17 does not state a cause of action for negligence in Count V and accordingly this claim is dismissed 18 without prejudice. Plaintiff is permitted to amend his complaint to attempt to state such a claim in 19 accordance with the directives of this order, including alleging facts demonstrating compliance 20 with the California Tort Claims Act, as set forth below. 21 2. 22 Like Count V, Counts VI–VIII purport to allege state law tort claims under the California Plaintiff Has Not Stated Claims Under the Tort Claims Act (Counts VI–VIII). 23 Tort Claims Act against “Defendants.” (Compl. ¶¶ 80–105.) Under the California Tort Claims 24 Act, a plaintiff may not maintain an action for damages against a public entity or a public 25 employee unless he timely files a notice of tort claim. Cal. Gov’t Code §§ 905, 911.2, 945.4 & 26 950.2; Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995) (“The California 27 Tort Claims Act requires, as a condition precedent to suit against a public entity, the timely 28 presentation of a written claim and the rejection of the claim in whole or in part.”). “Compliance 12 1 with the claims statutes is mandatory; and failure to file a claim is fatal to the cause of action.” 2 City of San Jose v. Sup. Ct., 12 Cal. 3d 447, 454 (1974) (internal citations omitted). “Complaints 3 that do not allege facts demonstrating either that a claim was timely presented or that compliance 4 with the claims statute is excused are subject to [dismissal] for not stating facts sufficient to 5 constitute a cause of action.” Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 (2007); 6 accord Mangold, 67 F.3d at 1477. 7 Here, Plaintiff alleges that “[t]o the extent required by law, Plaintiff has exhausted any 8 applicable administrative remedies for the claims asserted herein” (Compl. ¶ 42), but does not 9 allege any facts in his complaint demonstrating that he has complied with the California Tort 10 Claims Act by timely filing a notice of tort claim with the appropriate entities. Therefore, all of 11 Plaintiff’s state tort law causes of action under the California Tort Claims Act against Defendants 12 shall be dismissed for failure to state a claim. See Mangold, 67 F.3d at 1477; Shirk, 42 Cal.4th at 13 209. 14 Further, under California law a public entity is not liable for a claim brought by a plaintiff 15 unless liability is provided for by statute or required by the state or federal constitution. Cal. Gov. 16 Code § 815; Lundeen Coatings Corp. v. Dep’t of Water & Power for the City of Los Angeles, 232 17 Cal. App.3d 816, 832 (1991); see also Munoz v. City of Union City, 148 Cal. App. 4th 173, 182, 18 (2007) (“‘[D]irect tort liability of public entities must be based on a specific statute declaring them 19 to be liable, or at least creating some specific duty of care.’”) (citations and quotations omitted). 20 Therefore, in order to state a cause of action for government tort liability, “every fact essential to 21 the existence of statutory liability must be plead[ed] with particularity, including the existence of a 22 statutory duty.” Freitag v. City of San Diego Harbor Police, No. 11–CV–2999–IEG (JMA), 2012 23 WL 160051, at *5 (S.D. Cal. Jan. 18, 2012) (citing Zuniga v. Housing Auth., 41 Cal. App. 4th 82, 24 96 (1995) abrogated on other grounds by Zelig v. Cnty. of Los Angeles, 27 Cal. 4th 1112 (2002)). 25 Plaintiff does not identify in his Complaint what statute or statutes establish the County of 26 Madera’s liability. Therefore, Plaintiff’s state law claims against the County of Madera should 27 also be dismissed on this basis. 28 // 13 1 Finally, Plaintiff is advised that California Government Code§ 821.6 provides 2 prosecutorial immunity for public employees for “injury caused by his instituting or prosecuting 3 any judicial or administrative proceeding within the scope of his employment, even if he acts 4 maliciously and without probable cause.” Id. § 821.6. “California courts construe section 821.6 5 broadly in furtherance of its purpose to protect public employees in the performance of their 6 prosecutorial duties from the threat of harassment through civil suits.”3 Gillan v. City of San 7 Marino, 147 Cal. App. 4th 1033, 1048 (2007). Section 821.6 “immunizes not only the act of filing 8 or prosecuting a judicial or administrative complaint, but also extends to actions taken in 9 preparation for such formal proceedings.” Id. (citing Amylou R. v. County of Riverside, 28 Cal. 10 App. 4th 1205, 1209–10 (1994)). 11 A defendant is immune from liability pursuant to § 821.6 if: (1) he was an employee of the 12 County; (2) Plaintiff’s injuries were caused by acts committed by the defendant in instituting or 13 prosecuting a judicial or administrative proceeding; and (3) the defendant’s conduct while 14 instituting or prosecuting the proceeding was within the scope of her employment. Cameron v. 15 Buether, No. 09-CV-2498-IEG, 2010 WL 2635098, at *3 (S.D. Cal. June 29, 2010) (citing Amylou 16 R., 28 Cal. App. 4th 1205, 1209–10 (1994)). If these requirements are met, immunity attaches 17 even if the defendant acted “maliciously and without probable cause.” See Cal. Gov’t Code § 18 821.6. 19 Accordingly, the Court dismisses Plaintiff’s state law tort claims under the California Tort 20 Claims Act, Counts VI–VIII, without prejudice and with leave to amend to attempt to state a claim 21 pursuant to the above. 22 D. Defendant Fogg Has Absolute Prosecutorial Immunity From Plaintiff’s Claim for “Violation of Eighth Amendment (Excessive Bail)” (Count X). 23 In his Complaint, Plaintiff alleges that “[d]uring the initial appearance [] Plaintiff’s bail 24 25 was raised from $1,200,000 to $1,400,000 through the recommendation of [Defendant Fogg] 26 despite [] Plaintiff’s lack of involvement in the false allegations and [] Plaintiff’s law abiding and 27 28 3 Immunity under Government Code section 821.6 is not limited to claims for malicious prosecution, but also extends to other causes of action arising from conduct protected under the statute, including intentional infliction of emotional distress. See Kemmerer v. County of Fresno, 200 Cal. App. 3d 1426, 1435–37 (1988). 14 1 honorable background as a former law enforcement officer and U.S. Army veteran.” (Id. ¶ 111.) 2 Bail requests are part of a prosecutor’s job as an advocate for the state, and Defendant 3 Fogg, as a Deputy District Attorney, is therefore entitled to absolute prosecutorial immunity from 4 Plaintiff’s challenge to Defendant Fogg’s bail “recommendation.” See Dillberg v. Cty. of Kitsap, 5 76 F. App’x 792, 794 (9th Cir. 2003) (finding prosecutors “enjoy absolute immunity under § 1983 6 for recommending a bail amount of $500,000.” (citing Burns v. County of King, 883 F.2d 819, 824 7 (9th Cir. 1989). See also Cruz v. Kauai Cty., 279 F.3d 1064, 1067 n.3 (9th Cir. 2002) (prosecutor 8 was entitled to absolute immunity for filing a bail revocation motion); Franceschi v. Schwartz, 57 9 F.3d 828, 830–31 (9th Cir. 1995) (affirming the Rule 12(b)(6) dismissal of section 1983 claim on 10 the ground that absolute immunity extended to the issuance of a warrant and the setting of bail). 11 Thus, Plaintiff’s claim alleging violation of the Excessive Bail clause of the Eighth Amendment 12 (Count X) is not cognizable against Defendant Fogg.4 13 E. Plaintiff May File An Amended Complaint. 14 Plaintiff’s Complaint fails to state cognizable claims under 42 U.S.C. § 1983 and under 15 state tort law against Defendants. However, “Rule 15(a) [of the Federal Rules of Civil Procedure] 16 is very liberal and leave to amend ‘shall be freely given when justice so requires.’” 17 AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting 18 former version of Fed. R. Civ. P. 15(a)). See also Fed. R. Civ. P. 15(a)(2) (“The court should 19 freely give leave when justice so requires.”). As Plaintiff is proceeding pro se, he shall be given 20 an opportunity to amend his claims to cure the identified deficiencies to the extent he can do so in 21 good faith. 22 Plaintiff is advised that an amended complaint supersedes the original complaint. See 23 Lacey v. Maricopa Cty., 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc). The amended complaint 24 must be “complete in itself without reference to the prior or superseded pleading.” Rule 220 of the 25 Local Rules of the United States District Court, Eastern District of California. Once Plaintiff files 26 an amended complaint, the original pleading no longer serves any function in the case. Therefore, 27 28 4 It appears that Defendant Fogg is the only defendant against whom Plaintiff brings his Eighth Amendment claim. (See Compl. ¶ 111.) 15 1 in an amended complaint, as in an original complaint, each claim and the involvement of each 2 defendant must be sufficiently alleged. Plaintiff may not change the nature of this suit by adding 3 new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 4 2007). If Plaintiff fails to file an amended complaint or fails to cure the deficiencies identified 5 above, the Court will recommend that the complaint be dismissed with prejudice and without 6 leave to amend. 7 V. CONCLUSION AND ORDER 8 9 For the reasons set forth above, IT IS HEREBY ORDERED that: 10 1. 11 Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO AMEND; 12 2. 13 Within 30 days from the date of service of this order, Plaintiff shall file a first amended complaint; and 14 3. If Plaintiff fails to file a first amended complaint in compliance with this order, this 15 action will be recommended for dismissal for failure to state a claim upon which 16 relief can be granted. 17 18 IT IS SO ORDERED. 19 Dated: 20 February 9, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 16 .

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