Nobili v. California Highway Patrol et al

Filing 30

MEMORANDUM and ORDER signed by Chief Judge Morrison C. England, Jr on 11/21/13: Plaintiff's Second Amended Complaint 18 is dismissed with respect to Plaintiffs claims against Farrow. Plaintiff is granted one final opportunity to amend the complaint in order to state a legally cognizable cause of action. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK NOBILI,

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No. 2:12-cv-02804-MCE-KJN
Plaintiff,

v.

MEMORANDUM AND ORDER

CALIFORNIA HIGHWAY PATROL
COMMISSIONER JOSEPH A.
FARROW IN HIS
INDIVIDUAL/PERSONAL CAPACITY;
AND CALIFORNIA HIGHWAY
PATROL OFFICERS GALLEY &
MANCIU IN THEIR
INDIVIDUAL/PERSONAL
CAPACITIES,

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Defendants.

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On June 12, 2013, Mark Nobili (“Plaintiff”) filed a Second Amended Complaint

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(“SAC”) alleging a 42 U.S.C. §1983 civil rights action against California Highway Patrol

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Commissioner Joseph A. Farrow (“Farrow”), Officer Galley (“Galley”), and Officer Manciu

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(“Manciu”). Compl., ECF No. 18.1 On July 19, 2013, Farrow filed a Motion to Dismiss.

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Mot., ECF No. 22.2

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Galley and Manciu filed an answer to Plaintiff’s SAC on June 26, 2013. Answer, ECF No. 21.

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Because oral argument will not be of material assistance, the Court ordered this matter
submitted on the briefs. E.D. Cal. Local R. 230(g).

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BACKGROUND3

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On June 26, 2010, Galley and Manciu stopped Plaintiff’s vehicle for Plaintiff’s

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failure to wear a seat belt. During the traffic stop, Galley and Maciu arrested Plaintiff for

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driving under the influence of alcohol. On May 18, 2011, Plaintiff challenged the

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constitutionality of the traffic stop in California state court through a suppression motion.

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The state court concluded that the officers lacked probable cause to stop Plaintiff’s car

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on June 26, 2010. On June 1, 2011, the Sacramento County District Attorney’s Office

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dismissed the case because there was insufficient evidence to proceed.

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STANDARD

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On a motion to dismiss for failure to state a claim under Federal Rule of Civil

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Procedure 12(b)(6), all allegations of material fact must be accepted as true and

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construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336,337-38 (9th Cir. 1996). Rule 8(a)(2) requires only “a short and plain

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statement of the claim showing that the pleader is entitled to relief” in order to “give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require

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detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of

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his entitlement to relief requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Id. (internal citations and

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quotations omitted). A court is not required to accept as true a “legal conclusion

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couched as a factual allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)

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(quoting Twombly, 550 U.S. at 555).

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The facts are taken from Plaintiff’s SAC unless stated otherwise. See Compl., ECF No. 18.

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“Factual allegations must be enough to raise a right to relief above the speculative level.”

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

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Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain

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something more than “a 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 blanket

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assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (internal citations and

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quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard

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to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of

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the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 5 Charles

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Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain “only enough

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facts to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . .

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have not nudged their claims across the line from conceivable to plausible, their

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complaint must be dismissed.” Id. However, “[a] well-pleaded complaint may proceed

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even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a

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recovery is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S.

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232, 236 (1974)).

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A court granting a motion to dismiss a complaint must then decide whether to

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grant leave to amend. Leave to amend should be “freely given” where there is no

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“undue delay, bad faith or 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, [or] futility of the

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amendment . . . .” 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 Foman factors as those to

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be considered when deciding whether to grant leave to amend). Not all of these factors

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merit equal weight. Rather, “the consideration of prejudice to the opposing party . . .

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carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183,

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185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that

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“the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group,
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Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006,

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1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.

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1989) (“Leave need not be granted where the amendment of the complaint . . .

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

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ANALYSIS

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Plaintiff contends that Farrow, Galley, and Manciu violated his right to be free

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from unreasonable searches and seizures in violation of 42 U.S.C. § 1983. Plaintiff

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further contends that Farrow is liable under § 1983 based on a claim of supervisor

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liability under a deliberate indifference standard. Specifically, Plaintiff asserts that

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Farrow acted with deliberate indifference with respect to training, supervision and/or

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discipline, hiring, and in the failure to adopt policies necessary to prevent constitutional

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violations. Farrow is named as a defendant in his individual/personal capacity only.

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Personal capacity suits “seek to impose personal liability upon a government

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official for actions he takes under color of state law.” Kentucky v. Graham, 473 U.S. 159,

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165 (1985). “To sustain an action under section 1983, a plaintiff must show (1) that the

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conduct complained of was committed by a person acting under color of state law; and

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(2) that the conduct deprived the plaintiff of a federal constitutional or statutory right.”

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Hydrick v. Hunter, 466 F.3d 676, 689 (9th Cir. 2006). A plaintiff must demonstrate

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personal participation in the alleged deprivation of rights by a defendant because there is

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no respondeat superior liability under § 1983. Bell v. Clackamas County, 341 F.3d 858,

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867 n.3 (9th Cir. 2003).

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“Under Section 1983, supervisory officials are not liable for actions of

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subordinates on any theory of vicarious liability.” Hansen v. Black, 885 F.2d 642, 645-46

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(9th Cir. 1989). “A supervisor may be liable if there exists either (1) his or her personal

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involvement in the constitutional deprivation, or (2) a sufficient causal connection

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between the supervisor's wrongful conduct and the constitutional violation.” Id.
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“Supervisory liability exists even without overt personal participation in the offensive act

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if supervisory officials implement a policy so deficient that the policy ‘itself is a

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repudiation of constitutional rights’ and is ‘the moving force of the constitutional

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violation.’” Id. (internal citations omitted). For example, “[s]upervisory liability is imposed

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against a supervisory official in his individual capacity for his own culpable action or

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inaction in the training, supervision, or control of his subordinates, for his acquiescence

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in the constitutional deprivations of which the complaint is made, or for conduct that

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showed a reckless or callous indifference to the rights of others.” Menotti v. City of

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Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005).

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“[A] plaintiff may state a claim against a supervisor for deliberate indifference

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based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct

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by his or her subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). To be

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held liable, the supervisor need not be “directly and personally involved in the same way

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as are the individual officers who are on the scene inflicting constitutional injury.” Id. at

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1205-06. Rather, the supervisor's involvement “could include his own culpable action or

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inaction in the training, supervision, or control of his subordinates, his acquiescence in

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the constitutional deprivations of which the complaint is made, or conduct that showed a

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reckless or callous indifference to the rights of others.” Id.

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When alleging a “deliberate indifference” theory of individual liability, a plaintiff

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“must still allege sufficient facts to plausibly establish the defendant's ‘knowledge of’ and

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‘acquiescence in’ the unconstitutional conduct of his subordinates.” Hydrick, 669 F.3d at

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942. The use of “bald” and “conclusory” allegations are insufficient to establish

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individual liability under 42 U.S.C. § 1983. Id., see, e.g., Starr, 652 F.3d at 1217 (noting

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that the Supreme Court's decision in Iqbal did not alter the substantive requirements for

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supervisory liability claims in an unconstitutional conditions of confinement case under

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the Eighth and Fourteenth Amendments where deliberate indifference is alleged).

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Plaintiff does not make any specific factual allegations about how Farrow’s

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conduct resulted in Plaintiff’s constitutional deprivation, other than conclusory statements
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about Farrow approving, ratifying, condoning, encouraging, or tacitly authorizing a

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pattern and practice of misconduct. See Hydrick, 669 F.3d at 942. In his SAC, Plaintiff

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fails to establish either that Farrow was personally involved in the constitutional

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deprivation or a sufficient causal connection between Farrow’s wrongful conduct and the

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constitutional violation. Rather, Plaintiff’s SAC makes the legal conclusion that Farrow

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acted with deliberate indifference with respect to Plaintiff’s constitutional injury; however,

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Plaintiff fails to include any specific facts that support his conclusion that Farrow was the

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actual and proximate cause of the deprivation of Plaintiff’s constitutional rights.

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Furthermore, the SAC does not establish Farrow’s knowledge of or acquiescence

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in the unconstitutional conduct of Galley and Manciu. Plaintiff’s suggestion that because

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Farrow’s co-defendants, Galley and Manciu, remain employed as officers, Farrow

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demonstrated willful indifference and acquiescence to a constitutional injury is not

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plausible absent more information about what Farrow knew and how he failed to act in

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spite of that knowledge. Plaintiff fails to allege any underlying facts plausibly

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establishing such a connection or even awareness of the incident by Farrow.

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Plaintiff’s SAC also fails to make detailed factual allegations that go beyond

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reciting the elements of a claim of deliberate indifference. For example, Plaintiff did not

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include examples of “prior incidents of the same character that would have made

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[Farrow] aware of the situation such that [Farrow] could reasonably be said to have been

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deliberately indifferent to the need for further training.” Mueller v. Auker, 700 F.3d 1180,

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1194 (9th Cir. 2012). Similarly, Plaintiff did not allege the existence of any reports or

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instances that would have alerted supervisors that the officers' training was inadequate

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to the point that Farrow was deliberately indifferent to the need for training.

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Plaintiff must state more than merely conclusory allegations. To survive a motion

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to dismiss, Plaintiff must allege sufficient underlying facts that demonstrate that either

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Farrow was personally involved in the constitutional deprivation or that a sufficient

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causal connection existed between Farrow’s wrongful conduct and the constitutional

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violation. Plaintiff fails to adequately allege either basis in his SAC for his claims against
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Farrow and therefore does not contain sufficient underlying facts to give fair notice and

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to enable Farrow to defend himself effectively. Thus, Plaintiff’s SAC against Farrow is

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DISMISSED with one final opportunity to amend.

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CONCLUSION

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Based on the foregoing reasons, Plaintiff’s Second Amended Complaint (ECF No.

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18) is dismissed with respect to Plaintiff’s claims against Farrow. Plaintiff is granted one

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final opportunity to amend the complaint in order to state a legally cognizable cause of

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action. Plaintiff may (but is not required to) file an amended complaint against Farrow. If

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no amended complaint is filed within twenty (20) days of the electronic filing of this order,

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the dismissal of all claims against Farrow shall become final with no further leave to

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amend and without further notice to the parties.

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IT IS SO ORDERED.

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Dated: November 21, 2013

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