Von Brincken et al v. Royal et al

Filing 11

ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/10/2013 GRANTING 5 Request for Judicial Notice; RECOMMENDING that the 4 Motion to Dismiss be granted; RECOMMENDING that this action be dismissed with prejudice. Motion referred to Judge Morrison C. England, Jr. Objections due within 14 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHELLEY VON BRINCKEN,
JOHN VON BRINCKEN,

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Plaintiffs,

NO. 2:12-cv-2599-MCE-CKD PS

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vs.
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KEITH ROYAL, et al.,

ORDER &
FINDINGS AND RECOMMENDATIONS

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Defendants.
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/

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This action for violation of 42 U.S.C. § 1983, 15U.S.C. § 1692, and related state

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law tort claims arises in connection with the foreclosure of plaintiffs’ property. Before the court

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is defendants Keith Royal, the Nevada County Sheriff’s Department, Keith Grueneberg and Rich

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Fevinger’s (collectively “Defendants”) motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

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Dkt. 4. Plaintiff filed an opposition on December 7, 2012 (dkt. 8), and defendants replied on

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December 28, 2012 (dkt. 9).

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Defendants’ motion to dismiss came on for hearing on January 9, 2013. Marco

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Kropf appeared before the undersigned on behalf of defendants. Plaintiffs, who are proceeding

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pro se, failed to appear before the court. Upon review of the documents in support of and in

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opposition to the motions, upon hearing the argument of counsel, and good cause appearing

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therefor, THE COURT FINDS AS FOLLOWS:
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BACKGROUND

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On October 18, 2012, plaintiffs were served with an eviction notice and writ of

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possession by Nevada County sheriffs Keith Gruenberg and Rich Fevinger in connection with the

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foreclosure of plaintiffs’ property. See Dkt. 1 at 2. Plaintiffs are challenging the underlying

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foreclosure in a separate action before this court. See Case no. 2:12-cv-01689. On October 19,

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2012, plaintiffs filed the complaint in the instant litigation alleging that their Fourth Amendment

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and Due Process rights were violated under 42 U.S.C. § 1983 when defendants served them with

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the notice and writ of possession. See Dkt. 1. The complaint also alleges violations of the Fair

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Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and includes references to

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fraud, the intentional infliction of emotional distress, and negligence. Id.

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DISCUSSION

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In considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim

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upon which relief can be granted, the court must accept as true the allegations of the complaint in

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question, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light

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most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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To avoid dismissal for failure to state a claim, a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a

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claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at

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570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 129 S. Ct. at 1949.

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Defendants’ Request for Judicial Notice

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Although a court generally is confined to the pleadings on a Rule 12(b)(6) motion,

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it can also consider facts which may be judicially noticed. Mullis v. United States Bankruptcy

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Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). “A judicially noticed fact must be one not subject to

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reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the

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trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy

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cannot reasonably be questioned.” Fed. R. Evid. 201(b). Consideration of these documents

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outside the complaint will not convert the motion into a motion for summary judgment. United

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States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

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Here, the court takes judicial notice of Exhibit A (dkt. 5-1) to defendants’ motion

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to dismiss, the writ of possession issued by the Superior Court of California, County of Nevada.

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The writ is a court order, signed by the clerk of court, whose accuracy cannot reasonably be

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questioned. See Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986)

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(abrogated on other grounds) (allowing judicial notice to be taken of records and reports of

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administrative bodies).

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Section 1983 Claims

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To state a claim under section 1983, a plaintiff must allege that: (1) defendant

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was acting under color of state law at the time the complained of act was committed; and (2)

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defendant’s conduct deprived plaintiff of rights, privileges or immunities secured by the

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Constitution or laws of the United States. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48

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(1988). Here, plaintiffs appear to allege violations of their Fifth and Fourth Amendment rights

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pursuant to 42 U.S.C. § 1983. There is no dispute that the individual officers were acting under

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color of state law. West, 487 U.S. at 50 (“generally, a public employee acts under color of state

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law while acting in his official capacity or while exercising his responsibilities pursuant to state

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law.”)

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Vicarious Liability Under § 1983
In addition to the two deputies who served the eviction notice and writ of

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possession, plaintiffs also name Sheriff Keith Royal and the Nevada County Sheriff’s

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Department as defendants in this action. Because there is no respondeat superior or vicarious

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theory of liability generally available under § 1983, claims against these two defendants must be

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specially plead.

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In regards to plaintiffs’ claims against Royal, it is alleged that he acted “by and

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through” the two deputies who actually served the notice, and that he is named in this suit

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“because he has a central role in directing the activities of the Sheriffs Deputies under his

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command, sets policy for his department . . . . ” See Dkt. 1. But this is insufficient to establish,

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as plaintiffs must, that each “Government-official defendant, through the official’s own

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individual actions, has violated the Constitution.” See Ashcroft v. Iqbal, 556 U.S. 662, 676

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(2009). Without more, plaintiffs have not demonstrated how defendant Royal’s personal actions

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resulted in the violation of their constitutional rights. See Starr v. Baca, 652 F.3d 1202, 1207

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(9th Cir. 2011) (a supervisor can only be held liable for his or her own culpable action or

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inaction). Accordingly, plaintiffs’ claims against defendant Royal should be dismissed.

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Plaintiffs’ claims against the Nevada County Sheriff’s Department must satisfy

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the requirements of Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 691

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(1978). Since there is no respondeat superior liability under § 1983, counties and municipalities

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may be sued under § 1983 only upon a showing that an official policy or custom caused the

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constitutional tort. Id. Plaintiffs have made no such showing here. In fact, plaintiffs have plead

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no factual allegations against this defendant whatsoever, let alone those sufficient to state a claim

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under the municipal policy theory of liability. Although plaintiffs’ opposition to the motion to

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dismiss acknowledges the requirements of Monell, the opposition merely asserts that: “I have

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established that the government agencies named have a custom and policy to violate the Fourth

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Amendment and the due process rights of people who have been foreclosed on by failed to serve
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a Warrant . . . . ” Dkt. 8-1 at 19. The complaint contains no allegations supporting such an

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assertion and mere conclusory statements do not suffice. See Iqbal, 129 S. Ct. at 1949.

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Accordingly, the Nevada County Sheriff’s Department should be dismissed from this action.

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Quasi-Judicial Immunity
Defendants Gruenberg and Fevinger claim that they are entitled to absolute

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immunity from liability under § 1983 by way of the quasi-judicial immunity doctrine. Dkt. 4-1.

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“Judicial immunity is not limited to judges. All those who perform judge-like functions are

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immune from civil damages liability.” Ryan v. Bilby, 764 F.2d 1325, 1328 n.4 (9th Cir. 1985).

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In Fayle v. Stapley, the Ninth Circuit concluded that certain government officers were immune

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from civil rights liability for actions authorized by a court order. 607 F.2d 858, 862 n.4 (9th Cir.

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1979). Since then, the Court has extended that immunity to all persons who faithfully execute

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valid court orders, explaining that such persons are “integral parts of the judicial process” and

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“the fearless and unhesitating execution of court orders is essential if the court’s authority and

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ability to function are to remain uncompromised.” Coverdell v. Department of Social & Health

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Services, 834 F.2d 758, 764-65 (9th Cir. 1987); see Martin v. Hendren, 127 F.3d 720, 721 (8th

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Cir. 1997) (holding that “bailiffs enjoy absolute quasi-judicial immunity for actions specifically

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ordered by the trial judge and related to the judicial function”), Henry v. Farmer City State Bank,

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808 F.2d 1228, 1238-39 (7th Cir. 1986) (extending absolute quasi-judicial immunity to a sheriff

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acting pursuant to an official court order to enforce a money judgment of the court and

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explaining that “it is difficult to think of a task more intimately related to a judicial proceeding

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than that of enforcing a money judgment entered by a court.”)

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Here, the allegations show that defendants Gruenberg and Fevinger, both county

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sheriffs, served an eviction notice and writ of possession upon plaintiffs on October 18, 2012,

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pursuant to a court order of the Nevada County Superior Court. Dkt. 1 at 2. Enforcing what they

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believed to be a valid judgment of the court, these defendants are protected by quasi-judicial

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immunity. No allegations support a claim that either of the defendants acted outside the scope of
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their authority in executing court orders. Thus, the claims against them should be dismissed.

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See Coverdell, 834 F.2d at 765 (a wronged plaintiff may always attack the court’s order directly

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or on appeal, but the worker who faithfully executes such orders may not become a “lightning

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rod for harassing litigation aimed at judicial orders.”) Plaintiffs’ reliance on cases disallowing

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qualified immunity in various circumstances — involving entirely different actors and differing

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causes of action — are not on point and lend no support to plaintiffs’ argument.

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Other Claims

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The complaint also includes reference to various other causes of action including

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the FDCPA, 15 U.S.C. § 1692, fraud, intentional infliction of emotional distress and negligence.

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Plaintiff sets forth no factual allegations that can support a claim under any of the statutes. For

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example, with respect to § 1692, plaintiffs do not allege that any of the defendants are debt

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collectors within the meaning of the statute. See 15 U.S.C. § 1692a(6); Izenberg v. ETS

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Services, LLC, 589 F. Supp. 2d 1193, 1198-99 (C.D. Cal. 2008) (to state a claim under the

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FDCPA, plaintiff must allege that defendants are debt collectors as defined by the statute).

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Plaintiffs’ bare assertion that “[D]efendants intentionally inflicted emotional distress” does not

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state a claim for the state law tort and survive a motion to dismiss under Iqbal. See Dkt. 1 at 49,

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129 S. Ct. at 1949. There are no factual allegations supporting plaintiffs’ reference to fraud or

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negligence.

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CONCLUSION

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For the reasons outlined above, IT IS HEREBY ORDERED that defendants’
request for judicial notice (dkt. 5) is GRANTED.

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IT IS HEREBY RECOMMENDED that:

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Defendants’ motion to dismiss (dkt. 4) be granted; and

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This entire action be dismissed with prejudice.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen days after being served with these findings and recommendations, any party may file

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written objections with the court and serve a copy on all parties. Such a document should be

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captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the

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objections shall be served and filed within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may waive the right to appeal

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the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 10, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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CKD9

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von brincken2599 MTD

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