Andre-Gollihar v. County of San Joaquin, et al

Filing 61

ORDER signed by Judge Morrison C. England, Jr., on 9/20/11 ORDERING that Defendants' 47 , 48 Motions to Dismiss the SAC are GRANTED with a final leave to amend. Plaintiffs may file a Fourth Amended Complaint, but no other leave to amend will be given. Defendants' 55 , 56 Motions to Strike are GRANTED as to any reference in ANY complaint of the Decedent as a Plaintiff in the action, and are otherwise DENIED as moot. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SANDRA ANDRE-GOLLIHAR et al.,

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Plaintiffs,

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No. 2:09-cv-03313-MCE-KJN

v.

ORDER

ROBERT SEMILLO et al.,

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Defendants.

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----oo0oo----

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Plaintiffs Sandra Andre-Gollihar, Anthony Joseph Gollihar,

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Casey Joseph Gollihar, and Catherine Belle Gollihar (collectively,

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“Plaintiffs”) seek redress from Defendants San Joaquin Officer

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Robert Semillo, San Joaqin County, the California Department of

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Corrections and Rehabilitation (“CDCR”), and CDCR Parole Agents

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Marty Briseno and Jeffrey Carter (collectively, “Defendants”), for

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actions arising from the death of Plaintiffs’ relative Casey

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Gollihar (“Decedent”).

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Plaintiffs filed a Second Amended Complaint (“SAC”) in March

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2011 (ECF No. 37).

Defendants filed two separate Motions to

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Dismiss the SAC (ECF Nos. 47 and 48) for failure to state a claim

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upon which relief may be granted, pursuant to Federal Rule of Civil

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Procedure Rule 12(b)(6).1

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additional information from Plaintiffs clarifying issues raised in

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the SAC.

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the concept of being placed “back on parole,” and the other

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allegations in paragraph nine of the SAC (See ECF No. 53).

On June 20, 2011, the Court requested

Specifically, the Court requested Plaintiffs elaborate on

In

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response, Plaintiffs filed a Third Amended Complaint (“TAC,” ECF

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No. 54), which Defendants have now requested the Court Strike (ECF

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Nos. 55 and 56).

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argument, and a hearing was held on August 11, 2011.

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following reasons, Defendants’ Motions to Dismiss are granted, and

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Defendants’ Motions to Strike are granted in part.

The Court requested the parties appear for oral
For the

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BACKGROUND2

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Plaintiffs are the surviving mother and three children of

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Decedent, who was on parole at the time of his death.

At the time

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of Decedent’s death, San Joaquin County and CDCR had a

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policy/custom/practice in place of wrongfully and illegally placing

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former parolees back on parole for fabricated reasons.

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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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The factual assertions in this section are based upon the
allegations in Plaintiffs’ TAC (ECF No. 54). Though Defendants
filed Motions to Dismiss the SAC, the parties acknowledged at oral
argument that the TAC was in fact the operative complaint at issue
before the Court.
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Decedent was placed back on parole for a fabricated reason as a

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result of this policy or practice.

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Plaintiffs further allege that in July 2007, Defendant Carter

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(Decedent’s assigned parole officer) told Decedent and Plaintiff

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Sandra Gollihar (Decedent’s mother) that Decedent’s parole was over

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as of August 1, 2007.

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would take up to three months for documentation confirming that

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decedent was off parole to arrive in the mail.

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Defendant Carter further stated that it

In December 2007, Defendant Briseno called Plaintiff Sandra

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Gollihar and stated that Decedent had not been reporting to

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Defendant Carter and was “running from the law.”

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Gollihar then informed Defendant Briseno that Decedent was off

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parole, as she had been previously told.

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spoke to Decedent, and told him that she was placing him “back on

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parole.”

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issuing a warrant for his arrest and that she would inform the

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authorities that Decedent was armed and dangerous.

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met with Defendant Briseno, who repeated that she was going to

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issue a warrant for his immediate arrest.

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Gollihar and Decedent each attempted to contact Defendant Carter,

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but their calls were never returned.

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Plaintiff Sandra

Defendant Briseno later

Defendant Briseno also informed Decedent that she was

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Decedent later

Plaintiff Sandra

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Several weeks later, Defendant was shot by Defendant Semillo.

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Plaintiffs allege that placing Decedent back on parole was the

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“moving force” and direct and proximate cause of his death.

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Plaintiffs allege that the actions of Defendants Carter and

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Briseno, in placing Decedent back on parole, issuing a warrant for

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his arrest, and informing authorities that Decedent was armed and

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dangerous, constitute deliberate indifference to Decedent’s life

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and to Plaintiffs’ right to his company.

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that it was foreseeable that wrongfully placing Decedent on parole

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as an “armed and dangerous” criminal could result in physical harm

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to Decedent.

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Plaintiffs further allege

STANDARD

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A.

Motions to Strike

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The Court may strike “from any pleading any insufficient

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defense or any redundant, immaterial, impertinent, or scandalous

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matter.”

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to strike is to avoid the expenditure of time and money that must

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arise from litigating spurious issues by dispensing with those

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issues prior to trial....”

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697 F.2d 880, 885 (9th Cir. 1983).

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which has no essential or important relationship to the claim for

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relief or the defenses being pleaded.”

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984 F.2d 1524, 1527 (9th Cir. 1993) (rev’d on other grounds Fogerty

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v. Fantasy, Inc., 510 U.S. 517 (1994)) (internal citations and

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quotations omitted).

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Fed. R. Civ. P. 12(f).

The “function of a 12(f) motion

Sidney-Vinstein v. A.H. Robins Co.,

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“Immaterial matter is that

Fantasy, Inc. v. Fogerty,

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Matter that is impertinent “consists of statements that do not

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pertain, and are not necessary, to the issues in question.”

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(internal citations and quotations omitted).

Id.

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B.

Motions to Dismiss

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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 as

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true and construed in the light most favorable to the nonmoving

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party.

Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,337-38 (9th

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Cir. 1996).

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statement of the claim showing that the pleader is entitled to

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relief” in order to “give the defendant fair notice of what the

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[...] claim is and the grounds upon which it rests.”

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

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

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Rule 12(b)(6) motion to dismiss does not require detailed factual

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allegations.

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grounds of his entitlement to relief requires more than labels and

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

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of action will not do.”

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omitted).

Rule 8(a)(2) requires only “a short and plain

Bell Atl.

A complaint attacked by a

However, “a plaintiff’s obligation to provide the

Id. (internal citations and quotations

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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1937, 1950 (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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Ashcroft v. Iqbal, 129 S. Ct.
“Factual

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Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R.

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Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)

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(stating that the pleading must contain something more than “a

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statement of facts that merely creates a suspicion [of] a legally

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cognizable right of action.”)).

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Furthermore, “Rule 8(a)(2)...requires a showing, rather than a

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blanket assertion, of entitlement to relief.”

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556 n.3 (internal citations and quotations omitted).

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“[w]ithout some factual allegation in the complaint, it is hard to

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see how a claimant could satisfy the requirements of providing 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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Arthur R. Miller, supra, at § 1202).

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enough facts to state a claim to relief that is plausible on its

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face.”

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claims across the line from conceivable to plausible, their

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complaint must be dismissed.”

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complaint may proceed even if it strikes a savvy judge that actual

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proof of those facts is improbable, and ‘that a recovery is very

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remote and unlikely.’”

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416 U.S. 232, 236 (1974)).

Id. at 570.

Twombly, 550 U.S. at
Thus,

Id. (citing 5 Charles Alan Wright &
A pleading must contain “only

If the “plaintiffs...have not nudged their

Id.

However, “[a] well-pleaded

Id. at 556 (quoting Scheuer v. Rhodes,

A court granting a motion to dismiss a complaint must then

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decide whether to grant leave to amend.

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“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 to the

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opposing party by virtue of allowance of the amendment, [or]

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futility of the amendment....”

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Leave to amend should be

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Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v.

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Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the

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Foman factors as those to be considered when deciding whether to

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grant leave to amend).

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weight.

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party...carries the greatest weight.”

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Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987).

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without leave to amend is proper only if it is clear that “the

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complaint could not be saved by any amendment.”

Not all of these factors merit equal

Rather, “the consideration of prejudice to the opposing
Id. (citing DCD Programs,
Dismissal

Intri-Plex Techs.

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v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing

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In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005); Ascon

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Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)

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(“Leave need not be granted where the amendment of the

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complaint...constitutes an exercise in futility....”).

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ANALYSIS

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A.

Motion to Strike

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It is unclear from the pleadings whether Plaintiffs intended

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to assert a Section 1983 claim under the Fourteenth Amendment on

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behalf of Decedent’s estate, or whether Plaintiffs are bringing the

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claims solely on their own behalf.

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extent that Plaintiffs intend to assert a claim on behalf of

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Decedent’s estate, Plaintiffs are not successors in interest under

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California law, and therefore lack standing to bring suit.

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Defendants argue that to the

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California Code of Civil Procedure section 377.32 states that

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one who “seeks to commence an action or proceeding...as the

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decedent’s successor in interest under the article, shall execute

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and file an affidavit or a declaration under penalty of perjury”

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that confirms decedent’s personal information, the facts of their

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death, and other information confirming that the plaintiff is the

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proper successor to decedent’s interests.

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§ 377.32 (West 2011).

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certificate must also be attached to the affidavit or declaration.

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Cal. Civ. Proc. Code

A certified copy of the decedent’s death

Id.

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In the Ninth Circuit, standing “is a threshold issue that

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precedes consideration of any claim on the merits.”

Cotton v. City

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of Eureka, 2010 WL 5154945 at *3 (N.D. Cal. 2010) (citing Moreland

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v. City of Las Vegas, 159 F.3d 365, 369 (9th Cir. 1998)).

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party who seeks to “bring a survival action bears the burden of

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demonstrating that a particular state’s law authorizes a survival

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action and that the plaintiff meets that state’s requirements for

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bringing [it].”

Any

Moreland, 159 F.3d at 369.

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This issue was discussed at length during oral argument.

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Plaintiffs have not submitted any affidavits or declarations that

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comply with California Civil Code section 377.32, and the docket is

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similarly void of any documentation or proof of Plaintiffs’ valid

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status as Decedent’s successor in interest.

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at oral argument that they are not suing as successors in interest,

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but simply as individuals for loss of familial relations and other

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non-beneficiary claims.

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Plaintiffs explained

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Therefore, any mention in any complaint of Decedent as

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Plaintiff or party to the suit, or any mention of any cause of

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action filed as a successor in interest is stricken, and the

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Motions to Strike are granted as to this issue only.

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concerns addressed in Defendants’ Motions to Strike are denied as

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moot for the reasons stated below.

The remaining

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B.

Motion to Dismiss

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Plaintiffs’ SAC and TAC both only allege one cause of action,

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namely that Defendants violated 42 U.S.C. § 1983 in depriving

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Plaintiffs of their rights under due process and the Equal

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Protection Clause of the Fourteenth Amendment. While the complaint

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is somewhat vague, Plaintiffs appear to only be asserting a due

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process claim, as they seek damages associated with “loss of

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income, services, protection, care, comfort, support, society,

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assistance…” etc.

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Defendants acknowledge, the Court will analyze Plaintiffs’ claims

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under due process and under Monell3 liability.4

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(TAC, ECF No. 54, at 6.)

Nonetheless, as

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Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978).

Plaintiffs make no distinction in either Complaint between
individual and entity liability, and so the court does not
contemplate the distinction here.
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Due Process – Right to Enjoy Familial Relations

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The Due Process clause protects the right to familial

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relations between family members.

Only official conduct that

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“shocks the conscience” is cognizable as a due process violation.

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County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citing

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Rochin v. Cal., 342 U.S. 165, 172-73 (1952)). This is the standard

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of culpability for a due process right to familial association.

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Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008).

The

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threshold question in such cases is “whether the behavior of the

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governmental officer is so egregious, so outrageous, that it may

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fairly be said to shock the contemporary conscience.”

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523 U.S. at 847 n. 8.

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rise to the “conscience-shocking level” is “conduct intended to

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injure in some way unjustifiable by any government interest.”

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at 849.

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Lewis,

The type of conduct which is most likely to

Id.

Nevertheless, conduct which was not intentional, but rather

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was deliberately indifferent, may rise to the conscience-shocking

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level in some circumstances.

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v. Mass. Gen. Hosp., 463 U.S. 239 (1983)).

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entails something more than negligence, but is satisfied by

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something less than acts or omissions for the very purpose of

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causing harm or with knowledge that harm will result.

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Brennan, 511 U.S. 825, 836 (1994).

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when a person has disregarded a risk of harm of which he was aware.

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The test for deliberate indifference does not permit liability to

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be premised on obviousness or constructive notice.

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Id. at 849–50 (citing City of Revere

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Deliberate indifference

Farmer v.

Deliberate indifference occurs

Id. at 842.

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The test for whether deliberate indifference will suffice to

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hold a governmental officer liable is “whether the circumstances

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are such that ‘actual deliberation is practical.’” Porter, 546 F.3d

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at 1137 (quoting Moreland, 159 F.3d at 372).

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is not practical when officers must make multiple split second

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decisions, such as in a high speed chase.

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Actual deliberation

Id.

Plaintiffs have failed to demonstrate enough facts sufficient

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to withstand a Motion to Dismiss.

Little or no information is

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provided that details any official conduct that “shocks the

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conscious” or otherwise sustains a valid claim under Twombly.

With

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the limited information presented, the Court cannot ascertain

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enough facts with regard to the circumstances surrounding

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Decedent’s death and Plaintiffs’ resulting injuries.

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the extent the SAC and TAC contemplate this portion of due process,

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Defendants’ Motion to Dismiss is granted.

Therefore, to

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2.

Monell Liability

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A local government may be liable for violating a party’s

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constitutional rights resulting from a policy, ordinance, or

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regulation pursuant to a governmental custom.

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Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008).

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policy must be the “moving force” behind the constitutional

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violation.

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Villegas v. Gilroy
The

Id.

Additionally, section 1983 requires that there is an actual

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connection or link between the actions of the defendant and the

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deprivation alleged to have been suffered by the plaintiff.

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v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978).
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Monell

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A person deprives another “of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act,

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participates in another’s affirmative acts, or omits to perform an

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act which he is legally required to do that causes the deprivation

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of which [the plaintiff complains].”

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633 (9th Cir. 1988); see also Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978).

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and focus on the duties and responsibilities of each individual

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defendant whose acts or omissions are alleged to have caused a

Leer v. Murphy, 844 F.2d 628,

The inquiry into causation must be individualized

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constitutional deprivation.

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v. Goode, 423 U.S. 362, 370-71, 375-77 (1976).

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Leer, 844 F.2d at 633; see also Rizzo

Against, the facts simply are not sufficient to allow the

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court to engage in the individualized inquiry that is required to

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find causation under the standards of Section 1983.

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facts in the light most favorable to the non-moving party,

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Plaintiffs have failed to state a claim upon which relief can be

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granted.

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granted.

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Construing the

Defendants’ Motions to Dismiss should therefore be

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CONCLUSION

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For the reasons stated above, Defendants’ Motions to Dismiss

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the SAC are GRANTED (ECF Nos. 47 and 48) with a final leave to

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amend.

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other leave to amend will be given.

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(ECF Nos. 55 and 56) are GRANTED as to any reference in ANY

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complaint of the Decedent as a Plaintiff in the action, and are

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otherwise DENIED as moot.

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Plaintiffs may file a Fourth Amended Complaint, but no

IT IS SO ORDERED.
Dated: September 20, 2011

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__________________________________
MORRISON C. ENGLAND, JR
UNITED STATES DISTRICT JUDGE

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DEAC_Signature-END:

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Defendants’ Motions to Strike

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