Hazlett, et al v. Dean, et al

Filing 38

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 4/22/2013 ORDERING 34 that defendants' motion to dismiss be, and the same hereby is GRANTED. Plaintiffs' first claim for violation of Sec 1983 is hereby DISMISSED with prejudice as against defendants Terry Dean, Chris Von Kleist, Jason Bramson, Chris Boyles, Kelley Haight, Steve Hiscock, and Tim Ryan.(Reader, L)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CHERRIE HAZLETT and TONY
HAZLETT,

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NO. CIV 2:12-01782 WBS DAD

Plaintiffs,
MEMORANDUM AND ORDER RE:
MOTION TO DISMISS

v.
TERRY DEAN, CHRISTOPHER VON
KLEIST, JASON BRAMSON, CHRIS
BOYLES, KELLY HAIGHT, STEVEN
HISCOCK, TIM RYAN, S.J.
JOHNSON, J.S. SOKSODA, and
Z.L. LOPETEGUY,

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Defendants.
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Plaintiffs Cherrie and Tony Hazlett brought this action
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against school employees and police officers arising from their
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arrest and prosecution for truancy and forgery.

Defendants Von

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Kleist, Bramson, Boyles, Haight, Hiscock, and Ryan, (together,
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“school defendants”), as well as defendant Dean, now seek
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dismissal under Federal Rule of Civil Procedure 12(b)(6) for
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failure to state a claim upon which relief can be granted.
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In its January 30, 2013 Order, the court granted in

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part and denied in part both the police defendants’ and school

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defendants’ motions to dismiss the First Amended Complaint

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(“FAC”).

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that plaintiffs’ § 1983 claims based upon a violation of their

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Fourth Amendment right to be free from unreasonable search and

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arrest without probable cause against the school defendants were

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untimely because the claims accrued at the time of the arrest,

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but that the same claims against defendants Dean, Johnson,

(Docket No. 31.)

The court held, in relevant part,

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Soksoda, and Lopeteguy were timely since those defendants were

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arguably peace officers subject to tolling under California

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Government Code section 945.3.

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Plaintiffs were granted leave to amend.

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(Jan. 30, 2013 Order at 2.)
(Id. at 3.)

In their Second Amended Complaint (“SAC”), plaintiffs

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bring two separate claims for violations of § 1983.

(Docket No.

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32.)

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subtitled “Malicious Prosecution” and alleges that defendants

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provided “materially false misleading [sic] and incomplete

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information and/or omitting material information to the

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prosecuting agency for the purpose of having Plaintiffs

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prosecuted for forgery, a felony” when defendants “did not and in

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good faith could not believe Plaintiffs to be guilty of the crime

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alleged.”

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“engaged in this malicious conduct with the purpose of depriving

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Plaintiffs of their Constitutional Rights to be free of unlawful

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seizure and the right to due process under the Fourth and

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Fourteenth Amendments of the United States Constitution.”

The first claim, brought against all defendants, is

(SAC ¶¶ 25-26.)

Plaintiffs maintain that defendants

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(Id. ¶

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27.)1

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The school defendants and Dean now move to be dismissed

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from the first claim for violation of § 1983 for failure to state

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a claim upon which relief can be granted under Rule 12(b)(6).

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(Docket No. 34.)

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Section 1983 provides a cause of action against any

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person who, under the color of state law, deprives another of any

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right, privilege, or immunity secured by the Constitution and

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laws of the United States.

42 U.S.C. § 1983.

“Section 1983 ‘is

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not itself a source of substantive rights,’ but merely provides

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‘a method for vindicating federal rights elsewhere conferred.’”

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Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v.

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McCollan, 443 U.S. 137, 144 n.3 (1979)).

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“[i]n order to prevail on a § 1983 claim of malicious

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prosecution, a plaintiff ‘must show that the defendants

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prosecuted [him] with malice and without probable cause, and that

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they did so for the purpose of denying [him] equal protection or

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another specific constitutional right.’” Awabdy v. City of

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Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (quoting Freeman v.

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City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)) (emphasis

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added).

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In the Ninth Circuit,

The crux of plaintiffs’ § 1983 claim is that they were

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arrested and prosecuted without probable cause.

To the extent

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they base the claim upon an alleged deprivation of their

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Fourteenth Amendment right to substantive due process, the

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Plaintiffs bring a separate § 1983 claim against
defendants Dean, Johnson, Soksoda, and Lopeteguy which appears to
rely on the same facts and constitutional deprivations in the
first claim but does not allege “malicious prosecution.”
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Supreme Court has said that “where a particular Amendment

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‘provides an explicit textual source of constitutional

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protection’ against a particular sort of government behavior,

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‘that Amendment, not the more generalized notion of “substantive

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due process,” must be the guide for analyzing these claims.’”

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Albright, 510 U.S. at 274 (plurality) (quoting Graham v. Connor,

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490 U.S. 386, 395 (1989)).

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be free from arrest and prosecution without probable cause,

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“substantive due process, with its ‘scarce and open-ended’

When a plaintiff asserts the right to

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‘guideposts,’ can afford him no relief.”

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(internal citation omitted).

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confirmed that “[t]he principle that Albright establishes is that

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no substantive due process right exists under the Fourteenth

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Amendment to be free from prosecution without probable cause.”

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Awabdy, 368 F.3d at 1069 (citing Albright, 510 U.S. at 268, 271

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(plurality) (further citations omitted)).

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Id. at 275 (plurality)

The Ninth Circuit in Awabdy

Plaintiffs appear to rely on Bretz v. Kelman, 773 F.2d

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1026 (9th Cir. 1985) in support of their claim.

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2-4 (Docket No. 35).).

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proposition that a § 1983 “malicious prosecution” claim based

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upon deprivation of the Fourteenth Amendment right to substantive

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due process is available for conspiracy to arrest and prosecute a

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plaintiff without probable cause, any such reading is foreclosed

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by Albright.

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deprivation of their Fourteenth Amendment right to substantive

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due process will be dismissed.

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(Pls.’ Opp’n at

To the extent Bretz ever stood for the

Thus, plaintiffs’ first § 1983 claim based on

As for plaintiffs’ § 1983 “malicious prosecution” claim
based upon a denial of their Fourth Amendment right to be free
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from seizure, the Supreme Court “ha[s] never explored the

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contours of a Fourth Amendment malicious-prosecution suit under §

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1983.”

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Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007)

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(characterizing analysis of § 1983 “malicious prosecution” claims

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based on the Fourth and Fourteenth Amendments as wading in “murky

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waters”).

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controlling case in support of their claim, if such a claim even

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exists.

Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007); see also

Plaintiffs’ opposition brief fails to cite a

Awabdy, cited at length by plaintiffs in their brief,

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involved § 1983 claims based upon intent to deprive the plaintiff

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of his First Amendment right to free speech, Fourteenth Amendment

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right to equal protection, and Thirteenth Amendment right to be

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free from slavery, not any Fourth Amendment violations.

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Awabdy, 368 F.3d at 1068-70.

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brief only asserts that “[d]eprivation of liberty, under color of

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law, supports the § 1983 cause of action,” an argument which, as

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discussed above, fails in the wake of Albright.

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7.)

See

Furthermore, plaintiffs’ opposition

(Pls.’ Opp’n at

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Evaluating plaintiffs’ claims under the standards laid

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out in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544 (2007), plaintiffs fail to offer

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any plausible support for a § 1983 “malicious prosecution” claim

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based upon intent to deprive plaintiffs of a Fourth Amendment

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right to be free from arrest without probable cause, thus

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plaintiffs’ first claim against defendants Terry Dean, Chris Von

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Kleist, Jason Bramson, Chris Boyles, Kelley Haight, Steve

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Hiscock, and Tim Ryan will be dismissed.2

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While leave to amend must be freely given, the court is

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not required to permit futile amendments.

See DeSoto v. Yellow

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Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Reddy v.

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Litton Indus., Inc., 912 F.2d 291, 296-97 (9th Cir. 1990); Rutman

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Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir.

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1987); Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,

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701 F.2d 1276, 1293 (9th Cir. 1983).

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plaintiffs have been granted leave to amend their pleadings to

On two separate occasions

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properly state a § 1983 claim against defendants.

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22, 31.)

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would be futile, and will not grant plaintiffs leave to amend a

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third time.

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(Docket Nos.

The court must therefore assume that further amendment

IT IS THEREFORE ORDERED that defendants’ motion to

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dismiss be, and the same hereby is, GRANTED.

Plaintiffs’ first

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claim for violation of § 1983 is hereby dismissed with prejudice

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as against defendants Terry Dean, Chris Von Kleist, Jason

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Bramson, Chris Boyles, Kelley Haight, Steve Hiscock, and Tim

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Ryan.

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DATED: April 22, 2013

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To the extent plaintiffs’ first claim for relief can be
based on the deprivation of any other constitutional right, the
SAC similarly fails to state a claim upon which relief can be
granted.
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