Jewett v. City of Sacramento Fire Dept., et al.,

Filing 18

MEMORANDUM and ORDER signed by Judge William B. Shubb on 8/12/10 ORDERING the Fire Dept's motion to dismiss 13 is GRANTED with respect to pltf's 1983 claim and DENIED in all other respects; IT IS FURTHER ORDERED that the Fire Dept's motion to strike the First Amended Complaint's references to Roy Jones as a dft 13 is GRANTED; AND IT IS FURTHER ORDERED that within 10 days of this order Mary C. Polansky-Gravatt shall either pay sanctions in the amount of $100 or submit a statement of good cause explaining her failure to comply with the 5/20/10 order and the Local Rules. (Carlos, K)

1 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 ROBERT L. JEWETT, Plaintiff, v. CITY OF SACRAMENTO FIRE DEPARTMENT; B. COOK; R. COPLEN; J. ARROYO; and DOES 1 through 20, inclusive, Defendants. ___________________________/ UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo----

NO. CIV. 2:10-556 WBS KJN MEMORANDUM AND ORDER RE: MOTION TO DISMISS AND MOTION TO STRIKE

----oo0oo---Plaintiff Robert L. Jewett brought this action against defendants City of Sacramento Fire Department ("Fire Department"), B. Cook, R. Coplen, and J. Arroyo for alleged violations of his constitutional rights pursuant to 28 U.S.C. § 1983 and state tort law. Presently before the court are the Fire

Department's motion to dismiss plaintiff's First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 1

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12(b)(6) and motion to strike portions of plaintiff's FAC pursuant to Rule 12(f). I. Factual and Procedural Background In the early morning hours of February 24, 2009, the City of Sacramento allegedly received a 9-1-1 call from an individual who believed that plaintiff had ingested drugs or alcohol and was suffering from an overdose. (FAC ¶ 7(C).)

Plaintiff alleges that he was not under the influence of drugs or alcohol at the time. (Id. ¶ 7(A).) Defendants Cook, Copeln, and

Arroyo, employees of the City of Sacramento Fire Department, responded to the call. (Id.)

Upon arrival, Cook, Copeln, and Arroyo allegedly rushed into plaintiff's home without his permission while "numerous unknown witnesses stood around watching." (Id. ¶ 7(B).) The FAC

alleges that Cook, Copeln, and Arroyo told plaintiff that he had "a doctor's appointment" and that they were going to take him there. (Id.) Cook, Copeln, and Arroyo then allegedly tackled

plaintiff to the ground, involuntary removed him from his home, and bound him to a stretcher. (Id.) Plaintiff was subsequently

transported to Sutter General Hospital in Sacramento, California, where he was examined and tested for drugs. (Id.) Plaintiff

allegedly was released from the hospital a few hours later. (Id.) Plaintiff subsequently filed this action in Sacramento County Superior Court on December 29, 2009. (Docket No. 2.) (Id.) The

case was removed to this court on March 8, 2010.

Plaintiff's FAC alleges a claim for violations of his First, Fourth, Fifth, Fourteenth, and Eighth Amendment rights pursuant 2

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to 28 U.S.C. § 1983, as well as state law claims for negligence, assault, battery, false imprisonment, defamation, libel, slander, intentional infliction of emotional distress, and negligent infliction of emotional distress. The Fire Department now moves

to dismiss those claims in the FAC alleged against it. II. Discussion A. Motion to Dismiss On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416

U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff needs to

plead "only enough facts to state a claim to relief that is plausible on its face." 544, 570 (2007). Bell Atl. Corp. v. Twombly, 550 U.S.

This "plausibility standard," however, "asks

for more than a sheer possibility that a defendant has acted unlawfully," and where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility." Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 55657). 1. § 1983 Claim

In relevant part, § 1983 provides, Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for 3

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redress . . . . While § 1983 is not itself a source of substantive rights, it provides a cause of action against any person who, under color of state law, deprives an individual of federal constitutional rights or limited federal statutory rights. 42 U.S.C. § 1983;

Graham v. Connor, 490 U.S. 386, 393-94 (1989). Because the Fire Department is a municipal department within the City of Sacramento it is not a "person" subject who can be sued pursuant to § 1983. While a state is not considered

a "person" subject to § 1983 liability, Will v. Mich. Dept. of State Police, 491 U.S. 58, 69-71 (1989), local government units, such as counties or municipalities are. Monell v. New York City

Dept. of Social Services, 436 U.S. 658, 690-91 (1978); Will, 491 U.S. at 69-71. However, municipal departments and sub-units of local governments, such as police and fire departments, generally are not considered "persons" for the purpose of § 1983 liability. See United States v. Kama, 394 F.3d 1236, 1239 (9th Cir. 2005) (Ferguson, J., concurring) (finding municipal police departments and bureaus are generally not considered "persons" within the meaning of § 1983); Vance v. County of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996) (holding that the naming of a municipal department as a defendant "is not an appropriate means of pleading a § 1983 action against a municipality"); Wade v. Fresno Police Dept., No. Civ. 09-0588 AWI DLB, 2010 WL 2353525, at *4 (E.D. Cal. June 9, 2010) (holding a police department is not a "person" under § 1983); Morris v. State Bar of Cal., No. Civ. 09-0026 LJO GSA, 2010 WL 966423, at *5-*6 (E.D. Cal. Mar. 4

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11, 2010) (holding that a fire department is a municipal department and therefore not a "person" under § 1983). The Fire

Department's motion to dismiss plaintiff's § 1983 claim will accordingly be granted. 2. State Law Claims

The Fire Department argues that it is immune from plaintiff's negligence, defamation, libel, slander, intentional infliction of emotional distress, and negligent infliction of emotional distress claims. Under California law, a public entity

is not liable for a claim brought against it unless liability is provided for by statute or required by the federal or state constitution. Cal. Gov. Code § 815; Cochran v. Herzog Engraving

Co., 155 Cal. App. 3d 405, 409 (1984); Williams v. Horvath, 16 Cal. 3d 834, 838 (1976). California Government Code section 815

specifically provides that liability for a public entity must be provided by statute. Cal. Gov. Code § 815(a) ("Except as

otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.") "It is not interpreted to mean that public entities

are liable in tort only when the Legislature has enacted a statute imposing liability which on its face is applicable to public bodies. Rather, a liability is deemed `provided by Levine

statute' if a statute defines the tort in general terms." v. City of Los Angeles, 68 Cal .App. 3d 481, 487 (1977).

California Government Code section 815.2 provides that "[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the 5

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scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee . . . ." Cal. Gov. Code § 815.2. Public employees are

liable for injuries caused by their acts or omissions to the same extent as private individuals. Cal. Gov. Code § 820. Section

815.2 "expressly makes the doctrine of respondeat superior applicable to public employers." Hoff v. Vacaville Unified Sch. "A public entity, as the

Dist., 19 Cal. 4th 925, 932 (1998).

employer, is generally liable for the torts of an employee committed within the scope of employment if the employee is liable." Thomas v. City of Richmond, 9 Cal. 4th 1154, 1157

(1995) (internal citations omitted). The state law claims against the Fire Department are based upon the conduct of its employees alleged to have been acting within the scope of their employment. (See FAC ¶ 7(A).)

The Fire Department does not contend that its employees are themselves immune from liability for plaintiff's causes of action. Accordingly, plaintiff's claims against the Fire Since the Fire

Department have a statutory basis and are proper.

Department does not challenge the sufficiency of the state law claims against it, the court must deny the Fire Department's motion to dismiss these claims. B. Motion to Strike The Fire Department moves to strike the portions of the FAC which refer to Fire Department Chief Ray Jones as a defendant because he is not listed as a defendant in the caption of the FAC and the court did not provide plaintiff leave to add new defendants to this action. Pursuant to Federal Rule of Civil 6

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Procedure 12(f), a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Under Federal Rule of Civil Procedure

10(a) "[t]he title of the complaint must name all the parties" in a given action. While plaintiff could have chosen to add Ray

Jones as a party to the FAC because the court granted plaintiff leave to amend his original complaint, plaintiff has not named Ray Jones as a party in the caption or served him with the FAC. (Docket No. 11.) Accordingly, Ray Jones is not currently a party

to this action and should not be referred to as such in the FAC. See Fed. R. Civ. P. 10(a). The court will therefore order that

the FAC be stricken of any references to Ray Jones as a defendant in this action. C. Sanctions In its May 20, 2010 Order granting plaintiff leave to amend his original complaint, the court gave plaintiff twenty days from the date of its Order to file the FAC. 11.) (Docket No.

Despite this clear mandate, plaintiff filed his FAC on June Additionally,

15, 2010, five days after the court's deadline.

under Local Rule 230(c), a party must file an opposition, if any, to the granting of a motion fourteen days before the motion's noticed hearing date. Plaintiff late-filed his Opposition only The

ten days before the hearing scheduled on this motion.

failure of plaintiff's counsel to comply with the deadlines of the court has inconvenienced opposing counsel by limiting the amount of time available to formulate responses to plaintiff's filings in a timely manner. Although the Fire Department urges the court to strike 7

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plaintiff's FAC and Opposition, the court will not impose such a harsh punishment in the interests of justice. Local Rule 110

authorizes the court to impose sanctions for "[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court . . . ." Accordingly, the court will sanction

plaintiff's counsel, Mary C. Polansky-Gravatt, $100.00 payable to the Clerk of the Court within ten days of the date of this Order, unless she shows good cause for her failure to comply with this court's Order and the Local Rules. IT IS THEREFORE ORDERED that the Fire Department's motion to dismiss be, and the same hereby is, GRANTED with respect to plaintiff's § 1983 claim and DENIED in all other respects. IT IS FURTHER ORDERED that the Fire Department's motion to strike the First Amended Complaint's references to Roy Jones as a defendant be, and the same hereby is, GRANTED. AND IT IS FURTHER ORDERED that within ten days of the date of this Order Mary C. Polansky-Gravatt shall either (1) pay sanctions in the amount of $100.00 to the Clerk of the Court or (2) submit a statement of good cause explaining her failure to comply with the court's May 20, 2010 Order and the Local Rules. Plaintiff has twenty days from the date of this Order to file an amended complaint, if he can do so consistent with this Order.
DATED: August 12, 2010

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