Ludavico v. Sacramento County et al

Filing 88

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr. on 6/4/2012 GRANTING defendants' 78 Motion to Dismiss Second Amended Complaint with final leave to amend. Within 30 days of service of this Order, plaintiffs shall file an Amended Complaint and may not add any new claims to it. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS LUDAVICO, et al.,

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Plaintiffs,

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No. 2:08-cv-01473-MCE-KJM

v.

MEMORANDUM AND ORDER

SACRAMENTO COUNTY,
et al.,

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Defendants.
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Before the Court is Defendants’ Motion to Dismiss

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Plaintiffs’ Second Corrected Second Amended Complaint.

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No. 78.)

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Dismiss is GRANTED.

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(ECF

For the reasons that follow, Defendants’ Motion to

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BACKGROUND

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On October 14, 2011, Plaintiffs Thomas Ludavico, Sr., Thomas
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Ludavico, Jr., and Ashley Ludavico filed their Second Corrected
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Second Amended Complaint (“SCSAC”) against Defendants Sacramento
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County, Sacramento County Sheriff’s Department, Sheriff John
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McGinness, Sergeants Greg Hanks and Chris Mora, and Deputies
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Adrian Zuniga, Daniel Zuniga, Dexter Powe, Michael Heller, Brett
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Schannep and Chris Weightman.

(ECF 68.)

The one paragraph of

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the SCSAC that constitutes a statement of facts alleges:
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On or about May 14, 2007, the above named defendants,
and each of them, while in performance of their duties
to investigate and to determine whether Plaintiff,
Thomas Ludavico, Sr. presented a danger to himself
and/or others, brutally used excessive and reckless
force by striking and beating said Plaintiff’s body and
head with their fists, feet, and other objects, and
electrifying and shocking the person and body of said
Plaintiff using a Taser weapon, all such actions
occurring after said Plaintiff was not resisting.
These acts by the individual defendants are detailed in
the defendants’ own words in the Sacramento County
Sheriff’s Department Crime Report written by the
individual defendants, a true and correct copy of said
report is attached hereto as exhibit “A” and
incorporated herein by references. All actions
occurred in the presence of said Plaintiffs son and
daughter, Plaintiffs Thomas Ludavico, Jr. and Ashley
Ludavico.

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(ECF No. 68 at 5, ¶ 21.)

The Attached Exhibit “A” is a copy of a

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Government Tort Claim.

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presumably are referring to Exhibit “B,” which is fifty-two pages

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of what appears to be the Sheriff’s Department file on Ludavico,

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Sr., and which contains various documents – including arrest

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reports, interview notes, property reports, statements given by

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various officers, and handwritten notes apparently written by

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Ludavico, Sr.

(ECF No. 68, Ex. A.)

(ECF No. 68, Ex. B.)
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Plaintiffs

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Plaintiffs’ SCSAC states seven causes of action; the first

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six are brought solely by Ludavico, Sr., and are brought against

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all Defendants.

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is a 42 U.S.C. § 1983 claim alleging excessive force.

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5-6.)

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excessive force claim, making the same allegations but adding

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deliberate indifference and denial of medical care claims that

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appear to be related to his confinement in the Sacramento County

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Jail.

(ECF No. 68 at 5-11.)

The First Cause of Action
(Id. at

Plaintiff’s Second Cause of Action is another § 1983

(Id. at 7.)

The Third Cause of Action alleges negligent

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hiring and training, supervision, and retention in violation of

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§ 1983 and the Fourth Amendment.

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and Sixth Causes of Action are state law claims for negligence,

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assault and battery, and negligent and intentional infliction of

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emotional distress.

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brought only by Ludavico, Jr., and Ashley Ludavico, is a

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negligent and intentional infliction of emotional distress claim

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brought against Defendants McGinness, Sacramento County and the

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Sheriff’s Department.

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(Id. at 8.)

(Id. at 9-11.)

The Fourth, Fifth

The Seventh Cause of Action,

(Id. at 11-12.)

On October 14, 2011, Defendants filed their Motion to

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Dismiss (“MTD”).

(ECF No. 78.)

Defendants’ MTD contends that

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Plaintiffs’ SCSAC is deficient both on the basis of the

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sufficiency of Plaintiffs’ factual allegations, as well as on the

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sufficiency of Plaintiffs’ legal contentions and should be

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dismissed without leave to amend.

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Plaintiffs’ Opposition, if any, was due on or before

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November 17, 2011.

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Opposition until November 28, 2011, the day before the scheduled

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hearing on the MTD.

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leave for an extension with the Court.

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counsel has repeatedly failed to file briefs in a timely manner.

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See: (1) (ECF Nos. 11 and 12) (regarding Plaintiffs’ failure to

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file Opposition to an earlier motion to dismiss); (2) (ECF

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No. 40) (Order to Show Cause (“OSC”) why Plaintiffs’ counsel

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should not be sanctioned for failing to file an opposition or

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non-opposition to Defendants’ Motion for Sanctions (ECF No. 37));

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(3) (ECF No. 48) (OSC why Plaintiffs’ counsel should not be

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sanctioned for failing to timely file plaintiffs’ Second Amended

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Complaint); and (ECF No. 51) (Order for sanctions for failing to

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timely file plaintiffs’ Second Amended Complaint after Defendants

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counsel failed to respond to the Court’s OSC and OSC why counsel

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should not be sanctioned for failing to respond (ECF No. 48)).

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However, Plaintiffs did not file their

(ECF No. 81.)1

Plaintiffs had not sought
Notably, Plaintiffs’

In their Reply, Defendants contend that the Court should not

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consider Plaintiffs’ Opposition brief because it was untimely

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filed and should grant their MTD without leave to amend.

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No. 81 at 2.)

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(ECF

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Plaintiffs’ Counsel and co-counsel, William Bonham and
Lyle Solomon, filed declarations in support of the Opposition
which placed the blame on Mr. Solomon for failing to adhere to
the Court’s deadline. (ECF Nos. 82 and 83.)
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LEGAL STANDARD UNDER FED. R. CIV. P. 12(B)(6)2

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On a motion to dismiss for failure to state a claim under

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Rule 12(b)(6), all allegations of material fact must be accepted

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as true and construed in the light most favorable to the

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nonmoving party.

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337-38 (9th Cir. 1996).

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plain statement of the claim showing that the pleader is entitled

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to relief,’ in order to ‘give the defendant a fair notice of what

Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,
Rule 8(a)(2) “requires only ‘a short and

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the . . . claim is and the grounds upon which it rests.’”

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

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Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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be simple, concise, and direct.”

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Bell

“Each allegation must

Rule 8(d)(1) (emphasis added).

A complaint attacked by a Rule 12(b)(6) motion to dismiss

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does not require detailed factual allegations.

Twombly, 550 U.S.

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at 555.

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grounds of his entitlement to relief requires more than labels

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and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do.”

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A court is not required to accept as true a “legal conclusion

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couched as a factual allegation.”

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662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

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allegations must be enough to raise a right to relief above the

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speculative level.”

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However, “a plaintiff’s obligation to provide the

Id.

(Internal citations omitted.)

Ashcroft v. Iqbal, 556 U.S.
“Factual

Twombly, 550 U.S. at 555.

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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
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Furthermore, “Rule 8(a)(2) . . . requires a ‘showing,’

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rather than a blanket assertion, of entitlement to relief.”

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Twombly, 550 U.S. at 556 n.3 (internal citations omitted).

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where the well-pleaded facts do not permit the court to infer

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more than the mere possibility of misconduct, the complaint has

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alleged—but it has not ‘show[n]’—‘that the pleader is entitled to

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relief.’”

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“Without some factual allegation . . . , it is hard to see how a

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claimant could satisfy the requirements of providing not only

“But

Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)).

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‘fair notice’ of the nature of the claim, but also ‘grounds’ on

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which the claim rests.”

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omitted).

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claim to relief that is plausible on its face.”

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If the “plaintiffs . . . have not nudged their claims across the

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line from conceivable to plausible, their complaint must be

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dismissed.”

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Twombly, 550 U.S. at 556 n.3 (citation

A pleading must contain “only enough facts to state a
(Id. at 570.)

Id.

A court granting a motion to dismiss a complaint must then

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decide whether to grant a leave to amend.

Leave to amend should

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be “freely given” where there is no “undue delay, bad faith or

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dilatory motive on the part of the movant, . . . undue prejudice

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to the opposing party by virtue of allowance of the amendment,

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[or] futility of the amendment . . . .”

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178, 182 (1962).

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if it is clear that “the complaint could not be saved by any

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amendment.”

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499 F.3d 1048, 1056 (9th Cir. 2007) (internal citations omitted).

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Foman v. Davis, 371 U.S.

Dismissal without leave to amend is proper only

Intri-Plex Techs., Inc. v. Crest Group, Inc.,

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ANALYSIS

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Plaintiffs’ SCSAC fails to state any cognizable claims
against Defendants.

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A.

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Factual Allegations

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The one paragraph in the SCSAC devoted to facts (ECF No. 68
at 5, ¶ 21) fails to satisfy the standards for pleading set forth

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in Iqbal and Twombly.

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“while in the performance of their duties to investigate whether

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[Ludavico, Sr.] presented a danger to himself and/or others,

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brutally used excessive and reckless force” by striking and

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beating Ludavico, Sr., and using a Taser on him when he was not

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resisting arrest.

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Here, Plaintiffs allege that Defendants

(ECF No. 68 at 5, ¶ 21.)

As the Supreme Court noted in Iqbal, “the pleading standard

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Rule 8 announces does not require ‘detailed factual allegations,’

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but it demands more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.”

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is exactly what Plaintiffs have done here.

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Plaintiffs’ description of what occurred to Ludavico, Sr., as

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well as who, exactly, was involved in each act, is unclear,

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undeveloped and conclusory.

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officers were investigating whether Ludavico, Sr., was “a danger

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to himself and/or others” or provide any details as to what may

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have occurred at the scene.

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Iqbal, 556 U.S. at 678.

This, however,

Specifically,

Plaintiffs do not explain why

(ECF No. 68 at 5, ¶ 21.)

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In addition, Plaintiffs do not state which of the individual

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Defendants were at the scene, or specify which Defendants were

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responsible for the acts at issue.

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See id.

Further, nothing in this paragraph suggests facts that would

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support Plaintiffs’ Second Cause of Action claims that Ludavico,

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Sr., was subject to deliberate indifference and was denied access

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to medical care while he was incarcerated, or otherwise was

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harmed during his incarceration.

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contending that his rights were violated during his

To the extent that Ludavico is

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incarceration, he does not specify which Defendants were

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responsible for those acts.

(See ECF No. 68 at 7, ¶ 32.)

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In sum, Plaintiffs’ factual statement in the SCSAC

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constitutes a bare conclusory allegation that Defendants used

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excessive force against Ludavico, Sr.

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pleaded, Plaintiffs “have not nudged their claims across the line

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from conceivable to plausible.”

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While conceivable, as

Twombly, 550 U.S. at 570.

Plaintiffs’ attempt to force the Court to assemble their

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factual allegations for them by directing the Court to Exhibit

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“B” is also misconceived.

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exhibits are permissible if incorporated by reference, as they

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are here, they are unnecessary in the federal system of notice

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pleading, Rule 8(a).

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their complaint – particularly not an exhibit like Exhibit “B,”

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which is over fifty pages of police reports, interview notes,

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witness statements, records of evidence, etc. –

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expectation that the Court will sift through the exhibit and

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extract factual information to identify cognizable claims on

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Plaintiffs’ behalf.

Although pursuant to Rule 10(c),

Plaintiffs may not attach an exhibit to

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with the

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Although the Court will liberally construe Plaintiffs’ complaint,

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the burden of presenting the facts in a “short and plain” manner

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is on Plaintiffs; the Court will not perform their work for them.

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B.

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Substantive Law

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Each of Plaintiffs’ causes of action in the SCSAC is also

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deficient under the pleading standards set forth in Iqbal and

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Twombly.

First, as stated above, Plaintiffs’ statement of facts

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is so deficient that it cannot presently support any of

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Plaintiffs’ causes of action.

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essentially just states the elements of the cause of action and

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concludes that Defendants are liable.3

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state a claim for relief under Rule 8(a).

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678 (“the tenet that a court must accept as true all of the

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allegations contained in a complaint is inapplicable to legal

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conclusions.

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action, supported by mere conclusory statements, do not

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suffice.”); Twombly, 550 U.S. at 555 (“a plaintiff’s obligation

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to provide the grounds of his entitlement to relief requires more

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than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do”).

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Second, each of Plaintiffs’ claims

This is insufficient to
See Iqbal, 556 U.S. at

Threadbare recitals of the elements of a cause of

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For six of Plaintiffs’ causes of action, Plaintiffs allege
that all Defendants are liable without providing any factual
support for why “all” the Defendants would be liable (e.g., how
would the arresting officers be responsible for Ludavico, Sr.’s
denial of medical care claim?).
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C.

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Discussion

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Plaintiffs’ SCSAC will be dismissed with final leave to

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amend.4

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amended complaint must (1) be submitted within thirty days of the

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filing of this Memorandum and Order; and (2) clearly state

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individually for each Defendant a) who that Defendant is; b) what

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that Defendant did; c) what right that particular Defendant

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violated; and d) how that Defendant’s actions violated that

To survive summary dismissal by this Court, Plaintiffs’

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right.

Consistent with the pleading standards set forth in Rule

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8, as well as Iqbal and Twombly, Plaintiffs must detail the facts

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supporting their claims and tie those facts to each of their

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causes of action in a manner that would provide the Court “not

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only ‘fair notice’ of the nature of the claim, but also ‘grounds’

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on which the claim rests.”

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Twombly, 550 U.S. at 556 n.3 .

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Defendants urge the Court to dismiss without leave to
amend on the basis of (1) Plaintiffs’ failure to timely file
their Opposition; (2) the factual inadequacies of the SCSAC; and
(3) the merits of each of Plaintiffs’ causes of action. Although
the Plaintiffs’ pattern of untimely filings is of concern to the
Court, it declines to dismiss the case on that basis without
giving Plaintiffs clear direction that they have one last chance
to timely file or face dismissal, as the Court does here.
Further, the Court declines to dismiss without leave to amend
until Plaintiffs have been given a final opportunity to cure the
factual and legal deficiencies of the SCSAC.
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At this point, the Court will not delve into a substantive

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discussion of each of Plaintiffs’ causes of action because of the

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factual inadequacies of the SCSAC, but for constitutional

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violation claims, “[t]he inquiry into causation must be

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individualized and focus on the duties and responsibilities of

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each individual defendant whose acts or omissions are alleged to

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have caused a constitutional deprivation.”

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844 F.2d 628, 633 (9th Cir. 1988).

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notice that alleging that “all” Defendants violated Ludavico’s

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rights without providing any details about each Defendant, as

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they do in the SCSAC, is insufficient.

Leer v. Murphy,

Therefore, Plaintiffs are on

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CONCLUSION

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

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1.

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with final leave to amend;

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Defendants’ Motion to Dismiss (ECF No. 78) is GRANTED

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Within thirty (30) days of service of this Memorandum

and Order, Plaintiffs shall file an amended complaint;

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3.

Plaintiffs may not add any new claims to their

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complaint; and

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Failure to timely file an amended complaint will result

in summary dismissal with prejudice.
IT IS SO ORDERED.
Dated: June 4, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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