Howard v. City of Vallejo et al

Filing 19

ORDER signed by Judge Lawrence K. Karlton on 11/12/13 ORDERING that Defendant's MOTION TO DISMISS 8 is GRANTED in part as follows: Plaintiff's first cause of action is DISMISSED with leave to amend. Plaintiff's eighth cause of acti on is DISMISSED as to the City. Plaintiff's claim for punitive damages is DISMISSED. In all other respects, defendants' MOTION to DISMISS is DENIED. Plaintiff is GRANTED thirty days from the date of this order in which to file and serve an amended complaint. Defendants shall respond to the amended complaint within twenty days of service thereof. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MONTAE HOWARD, an individual,

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No. CIV. S-13-1439 LKK/KJN

Plaintiff,

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v.

ORDER

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CITY OF VALLEJO, et al.,

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Defendants.

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Plaintiff Montae Howard is proceeding through counsel with

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this action pursuant to 42 U.S.C. § 1983.

Plaintiff claims

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defendants City of Vallejo (City) and police officers Robert

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Greenberg and Robert Kerr violated his federal constitutional

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rights through excessive use of force and false arrest.

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Plaintiff also raises several state law claims.
On August 14, 2013, defendants filed a motion to dismiss

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pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 8).

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came on for hearing on November 4, 2013 and is resolved herein

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The motion

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I.

ALLEGATIONS OF THE COMPLAINT

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Plaintiff’s complaint, filed July 17, 2013 (ECF No. 2),

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contains the following allegations.

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p.m. plaintiff was inside the Five Star gas station on Lincoln

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Road in Vallejo.

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the police about a customer using counterfeit money. Id.

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cashier locked the door from the inside before calling police,

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leaving customers in the store.

On January 7, 2012, at 10:00

Complaint (ECF No. 2) at 4.

Id.

The

The accused customer “got

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into an altercation with the cashier.

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off of its hinges during the altercation.”

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The cashier called

The gas station door came
Id.

When City police officers arrived they had trouble getting

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in the store because of the unhinged door. Id.

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another man were still in the store when the police entered.

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They turned around and saw City police officers pointing guns at

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them.

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hands behind their backs, and complied with all commands. Id.

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The officers “seemed to focus” on plaintiff.

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justification or asking any questions, defendant Greenberg

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approached plaintiff, dropped his knee into plaintiff’s back and

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grabbed his right arm.

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plaintiff to restrain plaintiff.

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plaintiff’s right arm up and back so violently that plaintiff’s

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right elbow broke.

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my arm.”

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plaintiff’s arm, and defendant Kerr, without asking any

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questions, kicked plaintiff in the face, which dislodged one of

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plaintiff’s teeth.

Id.

Plaintiff and
Id.

They immediately got down on the ground, placed their

Id.

Id.

Id.

Id.

Without

Defendant Kerr put weight on
Id.

Defendant Greenberg pulled

Plaintiff screamed in agony “You broke

Defendant Greenberg replied that he had not broken

Id. at 5.

The cashier begged officers to get
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off plaintiff and told them plaintiff “was a customer and his

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friend.”

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with a broken elbow.

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emergency room for treatment.

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Id.

Defendants Greenberg and Kerr released plaintiff
Id.

Plaintiff went to the Sutter Solano
Id.

Plaintiff is informed and believed that neither officer has

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been disciplined for their misconduct.

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that the failure to discipline “demonstrates the existence of an

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entrenched culture, policy or practice of promoting, tolerating

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and/or ratifying with deliberate indifference the making of

Id.

Plaintiff alleges

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improper detentions and arrests, the use of racial profiling, the

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use of excessive and/or deadly force, and the fabrication of

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official reports to cover up” defendants’ misconduct.

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Plaintiff also alleges that there is a pattern or practice of

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excessive force by these officers.

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and believed that as a matter of official policy, based on

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deliberate indifference to constitutional rights primarily of

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minority citizens, the City has long allowed citizens like

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plaintiff to be abused by the police, that throughout 2012

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numerous citizens have been killed by the police and the City has

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failed to discipline or retrain any of the officers, which

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evidences an official policy of deliberate indifference to

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citizens’ rights and resulting false arrests.

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Id.

Id.

Plaintiff is informed

Id. at 6.

Plaintiff seeks general damages, special damages, punitive

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damages, injunctive relief, statutory damages, and attorneys’

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fees.

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II.

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Plaintiff has also demanded a jury trial.

STANDARDS FOR A RULE 12(B)(6) MOTION TO DISMISS
A dismissal motion under Fed. R. Civ. P. 12(b)(6) challenges

a complaint’s compliance with the federal pleading requirements.
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Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short

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and plain statement of the claim showing that the pleader is

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entitled to relief.”

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“‘fair notice of what the ... claim is and the grounds upon which

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it rests.’”

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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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The complaint must give the defendant

Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)

To meet this requirement, the complaint must be supported by

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factual allegations.

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(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678

Moreover, this court “must accept as true all of the

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factual allegations contained in the complaint.”

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Pardus, 551 U.S. 89, 94 (2007).

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Erickson v.

“While legal conclusions can provide the framework of a

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complaint,” neither legal conclusions nor conclusory statements

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are themselves sufficient, and such statements are not entitled

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to a presumption of truth.

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Twombly therefore prescribe a two-step process for evaluation of

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motions to dismiss.

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conclusory factual allegations, and then determines whether these

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allegations, taken as true and construed in the light most

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favorable to the plaintiff, “plausibly give rise to an

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entitlement to relief.”

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Iqbal, 556 U.S. at 679.

Iqbal and

The court first identifies the non-

Iqbal, 556 U.S. at 679.

“Plausibility,” as it is used in Twombly and Iqbal, does not

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refer to the likelihood that a pleader will succeed in proving

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the allegations.

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conclusory factual allegations, when assumed to be true, “allow[

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] the court to draw the reasonable inference that the defendant

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is liable for the misconduct alleged.”

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“The plausibility standard is not akin to a ‘probability

Instead, it refers to whether the non-

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Iqbal, 556 U.S. at 678.

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requirement,’ but it asks for more than a sheer possibility that

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a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

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at 557).

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by lacking a cognizable legal theory or by lacking sufficient

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facts alleged under a cognizable legal theory.

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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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III.

A complaint may fail to show a right to relief either

Balistreri v.

ANALYSIS

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A.

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Defendants contend plaintiff has failed to state a claim

First Cause of Action

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against the City in his first cause of action and that, as to the

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City, the first cause of action essentially duplicates the second

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cause of action.

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fails to state a claim under the Fifth, Ninth, or Fourteenth

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Amendments.

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Defendants also contend this cause of action

Plaintiff concedes all of these arguments and seeks leave to

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amend the complaint to reflect that his first cause of action is

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a Fourth Amendment claim for excessive force and unlawful seizure

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against defendants Greenberg and Kerr.

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Defendants’ motion to dismiss will be granted as to

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plaintiff’s first cause of action, which will be dismissed with

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leave to amend.

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B.

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Defendants contend plaintiff has failed to allege specific

Second Cause of Action

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facts sufficient to give rise to municipal liability under Monell

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v. Dept. of Social Services, 436 U.S. 658 (1978).

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disagrees.

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cure any defects in this claim.

Plaintiff

In the alternative, plaintiff seeks leave to amend to

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The requirements that pleadings “contain sufficient

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allegations of underlying facts to give fair notice” and that

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factual allegations “taken as true must plausibly suggest an

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entitlement to relief” apply to Monell claims.

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Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)

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(quoting Staff v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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elements of a Monell claim are (1) plaintiff was deprived of a

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constitutional right; (2) the municipality has a policy; (3) the

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policy amounts to deliberate indifference to plaintiff’s

AE ex rel

The

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constitutional right; and (4) the policy is the moving force

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behind the constitutional violation.

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Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. Sch.

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Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)).

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“[A] custom or practice can be ‘inferred from widespread

Dougherty v. City of

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practices or “evidence of repeated constitutional violations for

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which the errant municipal officers were not discharged or

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reprimanded.”’”

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1233 (9th Cir. 2011) (quoting Nadell v. Las Vegas Metro. Police

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Dep’t, 268 F.3d 924, 929 (9th Cir. 2001) (internal citations

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omitted).

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investigate and discipline employees in the face of widespread

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constitutional violations – can support an inference that an

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unconstitutional custom or practice has been unofficially adopted

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by a municipality.. . . In some circumstances a policy of

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inaction, such as a policy of failing to properly train

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employees, may form the basis of municipal liability.”

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1234 n.8 (emphasis in original).

Hunter v. County of Sacramento, 652 F.3d 1225,

“[E]vidence of inaction – specifically failure to

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Hunter at

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Plaintiff’s Monell claim against the City is supported by

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his allegations, made on information and belief, that:

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City has failed to discipline defendants Greenberg and Kerr for

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the incident at bar; (2) members of the Vallejo Police

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Department, including defendants Greenberg and Kerr, have

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individually and together engaged in a repeated practice of using

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excessive force against individuals including plaintiff; (3) as a

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matter of official policy “rooted in an entrenched posture of

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deliberate indifference to the constitutional rights of primarily

(1) the

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the minority citizens who live in the City of Vallejo” the City

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has allowed its citizens to be abused by police officers,

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including defendants Greenberg and Kerr; (4) City police officers

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have injured and killed numerous citizens in 2012 and none of the

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officers involved have been disciplined or retrained; and (5) the

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City knew/had reason to know about the policies, etc. and the

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conduct complained of and resulting injuries.

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These allegations do more than “simply recite the elements”

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of a Monell claim.

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sufficient to give the City fair notice of plaintiff’s claim that

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the City has a policy of deliberate indifference to a pattern and

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practice of excessive use of force and other violations of the

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constitutional rights of citizens by City police officers,

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particularly minority citizens, that is manifested in its failure

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to discipline or retrain officers involved in such incidents.

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Defendants’ motion to dismiss will be denied as to

Starr v. Baca, 652 F.3d at 1216.

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plaintiff’s second cause of action.

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They are

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C.

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Plaintiff’s sixth cause of action claims a violation of his

Sixth Cause of Action

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rights under California Civil Code § 51.7, which guarantees

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persons within California the right to freedom from violence or

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intimidation based on, in relevant part here, race.

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alleges that he is African-American.

Plaintiff

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Defendants seek dismissal of this claim as asserted against

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the City because the statute does not provide a basis for direct

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liability against a public entity. Specifically, defendants

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contend that California Civil Code § 51.7 neither contains

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language creating public entity liability nor references any

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specific duty of care owed by public entities to people like

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plaintiff. Plaintiff does not address this contention in his

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opposition.

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California public entities are not subject to
common law tort liability; all liability must
be pursuant to statute. See Cal. Gov't Code §
815; see also Guzman v. Cnty. of Monterey, 46
Cal.4th 887, 897, 95 Cal.Rptr.3d 183, 209
P.3d 89 (2009).

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AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 638 (9th

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Cir. 2012).

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not be part of the Tort Claims Act itself . . . Nor must the

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statute provide on its face that it is applicable to public

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entities.

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if a statute defines the tort in general terms.’”

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Southern Cal. Rapid Transit Dist., 40 Cal.3d 780, 785 n.2 (1985);

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see also Eastburn v. Regional Fire Protection Authority, 31

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Cal.4th 1175, 1183 (2003)(“direct tort liability of public

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entities must be based on a specific statute declaring them to be

“However, the statute providing for liability need

‘Rather, a liability is deemed “provided by statute”

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Lopez v.

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liable, or at least creating some specific duty of care, . . .

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.”)

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Civil Code § 51.7 provides in relevant part:

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(a)
All persons within the jurisdiction of
this state have the right to be free from any
violence, or intimidation by threat of
violence, committed against their persons or
property because of political affiliation, or
on account of any characteristic listed or
defined in subdivision (b) or (e) of Section
51…

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Cal. Civ. Code § 51.7(a).

While the statute does not

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specifically declare public entities liable for violation of its

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provisions, it does describe a specific tort: use of violence or

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intimidation by threat of violence committed against persons or

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property because of any of a number of characteristics, including

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race.

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create a basis for liability against the City is without merit.1

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Defendants also contend plaintiff has failed to state facts

Defendants’ contention that Civil Code § 51.7 does not

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to support a claim for relief under the statute.

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that plaintiff has failed to allege any facts showing that

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plaintiff’s race was a motivating reason for the officers’

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conduct.

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to indicate that the officers were motivated by racial animus; in

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the alternative, he seeks leave to amend the complaint.

They contend

Plaintiff contends that he has alleged sufficient facts

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Defendants do not contend that the City has a specific
statutory immunity from the liability created by Civil Code §
51.7. Cf. Gates v. Superior Court, 32 Cal.App.4th 481, 529-30
(1995) (Grignon, J., dissenting) (“Once it has been determined a
public entity and its employees owe a duty to plaintiff, it must
next be determined whether the public entity and its employees
are immune from liability. The existence of a duty does not
overcome an immunity barrier to liability; the two concepts must
be separately analyzed.”)
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Plaintiff alleges that he “is and was readily recognizable

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as an African-American.”

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2) at 11.

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in the gas station when the cashier called the police, that the

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cashier argued with the customer accused of passing the

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counterfeit money, that plaintiff and his friend were inside

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during that altercation and when police arrived, that when the

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police arrived he and his friend immediately got down on the

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ground and complied with the officers’ orders, that the officers

Complaint, filed July 17, 2013 (ECF No.

He further alleges that he was one of several people

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“seemed to focus on” him, and that without asking any him any

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questions defendant Greenburg pulled his arm so violently he

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broke it, and, when plaintiff screamed in agony, defendant

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Greenburg kicked plaintiff in the face, dislodging a tooth from

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his mouth.

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belief that the City of Vallejo has “as a matter of official

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policy – rooted in an entrenched posture of deliberate

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indifference to the constitutional rights of primarily the

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minority citizens” of Vallejo “long allowed its citizens, such as

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plaintiff . . . to be abused by its police officers.”

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Id. at 4.

Plaintiff also alleges on information and

Id. at 6.

Plaintiff’s allegations are sufficient to put defendants on

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notice of his claim that he was subjected to excessive use of

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force and unlawful seizure because of his race.

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motion to dismiss will be denied as to plaintiff’s sixth cause of

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action.2

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Defendants’

As noted above, plaintiff did not oppose that part of
defendants’ motion that sought dismissal of the City from
plaintiff’s sixth cause of action. Plaintiff should clarify in
his amended complaint whether he is proceeding against only the
two individual defendants on this cause of action or whether is
also proceeding against the City.
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D.

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Plaintiff’s seventh cause of action claims a violation of

Seventh Cause of Action

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his rights under California Civil Code § 52.1 (the Bane Act),

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which authorizes individual civil actions for damages and

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injunctive relief by individuals whose federal or state rights

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have been interfered with by threats, intimidation, or coercion.

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Relying primarily on Shoyoye v. Couty of Los Angeles, 203

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Cal.App.4th 947 (2012), defendants contend plaintiff has failed to

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state a claim for relief under this section because he has failed

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to allege threats, intimidation, or coercion independent of the

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alleged excessive force and wrongful search.

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disagrees, contending that Shoyoye applies only when the

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defendants’ conduct is not intentional.

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rule of Venegas v. County of Los Angeles, 32 Cal.4th 820, 843

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(2004), which was distinguished by the Shoyoye court, applies.

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Plaintiff

Plaintiff contends the

California Civil Code § 52.1 “provides remedies for ‘certain

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misconduct that interferes with’ federal or state laws, if

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accompanied by threats, intimidation, or coercion, and whether or

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not state action is involved.”

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32 Cal.4th 820, 843 (2004).

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held that § 52.1 did not apply to a claim brought by a plaintiff

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who had been over-detained in a county jail as a result of a

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clerical error.

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interference with constitutional rights involving more egregious

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conduct that mere negligence.” Shoyoye, 203 Cal.App.4th at 958.

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Venegas v. County of Los Angeles,

In Shoyoye, the state court of appeal

The court held that § 52.1 was meant “to address

Shoyoye has no application to the claims at bar.

Here,

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plaintiff has adequately alleged that he was subjected to

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unlawful restraint through use of force and intimidation.
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In the reply brief, defendants contend for the first time

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that the §52.1 claim “improperly seeks to impose liability

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against the individual officers jointly for the conduct of the

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other” contrary to California Government Code § 820.8.

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may properly decline to consider issues raised for the first time

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in a reply brief.

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2000).3

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The court

See U.S. v. Wright, 215 F.3d 1020 (9th Cir.

Defendants’ motion to dismiss will be denied as to
plaintiff’s seventh cause of action.

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E.

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Plaintiff’s eighth cause of action is a negligence claim

Eighth Cause of Action

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against the City and both defendant officers based on use of

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excessive force.

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the City on the ground that under California law all government

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tort liability must be based on statute and plaintiff has failed

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to plead a statutory basis for his negligence claim.

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has not addressed this argument.

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Defendants seek dismissal of this claim as to

Plaintiff

Under California law “’there is no common law tort liability

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for public entities in California; such liability is wholly

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statutory. [Citations.]’”

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of Transp., 164 Cal.App.4th 955, 975 (2008) (quoting In re

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Groundwater Cases, 154 Cal.App.4th 659, 688 (2007) and citing

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Gov. Code, § 815.) Plaintiff does not oppose this part of

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defendants’ motion, and he has not alleged a statutory basis for

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the negligence claim against the City and has not provided any

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statutory basis for the claim in his opposition.

McCarty v. State of California Dept.

Defendants’

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Of course, that is not to say that the matter may not be
presented properly at some future time.
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motion to dismiss the City from plaintiff’s eighth cause of

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action will be granted.

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F.

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Defendants seek dismissal of the prayer for punitive damages

Punitive Damages

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as to the City.

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included in his prayer for punitive damages.

Plaintiff concedes that the City should not be

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G.

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Relying primarily on City of Los Angeles v. Lyons, 461 U.S.

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Prayer for Injunctive Relief

95 (1982), defendants contend that plaintiff has failed to allege

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sufficient facts to show he has standing to seek the injunctive

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relief prayed for in the complaint, an order “enjoining

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Defendants from authorizing, allowing or ratifying the practice

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by any police officer employee of Defendant from using excessive

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and unreasonable force against persons, pursuant to California

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Civil Code Section52.1”

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has sufficient alleged a policy, pattern and practice of

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excessive force by City police officers to support his request

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for injunctive relief at the pleading stage.

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Complaint at 14.

Plaintiff contends he

In Lyons, the plaintiff
an African–American man, was stopped at 2:00
a.m. by Los Angeles police officers based on
a burned out taillight. According to Lyons'
complaint, the officers seized him without
provocation and applied a “chokehold.” As a
result
of
the
chokehold,
Lyons
lost
consciousness, defecated and urinated, and
suffered permanent damage to his larynx.
Lyons sought an injunction barring the Los
Angeles
Police
Department
from
using
chokeholds
except
in
certain
restricted
circumstances. The Supreme Court held that
Lyons “presumably” had standing to seek
damages against the officers and the City of
Los Angeles, id. at 105, 103 S.Ct. 1660, but
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that in the absence of a realistic threat of
future injury Lyons could not “demonstrate a
case or controversy with the City that would
justify the equitable relief sought.” . . .
Noting that Article III “case-or-controversy
considerations ‘obviously shade into those
determining whether the complaint states a
sound basis for equitable relief,’ ” id. at
103, 103 S.Ct. 1660 (quoting O'Shea v.
Littleton, 414 U.S. 488, 499, 94 S.Ct. 669,
38 L.Ed.2d 674 (1974)), the Court concluded
that even if Lyons had Article III standing
to seek an injunction, the speculative nature
of his claim of future injury precluded him
from establishing a key prerequisite for
equitable
relief,
“a
‘likelihood
of
substantial
and
immediate
irreparable
injury.’ ” Id. at 111, 103 S.Ct. 1660
(quoting O'Shea, 414 U.S. at 502, 94 S.Ct.
669). The Court explained that “the need for
a proper balance between state and federal
authority counsels restraint in the issuance
of injunctions against state officers engaged
in the administration of the States' criminal
laws in the absence of irreparable injury
which is both great and immediate.” Id. at
112, 103 S.Ct. 1660.

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Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040-41 (9th Cir.

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1999) (quoting Lyons).

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Hodgers-Durgin was an action brought by motorists stopped by

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Border Patrol agents while driving between Nogales, Mexico and

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communities in Arizona.

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stopped.

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controversy” holding of Lyons does not apply where the

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plaintiff’s encounter with the police was not the result of

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illegal conduct.

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nonetheless held that neither plaintiff had “demonstrated a

27

sufficient likelihood of injury to warrant equitable relief.”

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Id. at 1044.

Neither were doing anything illegal when

In that case, the Ninth Circuit held that the “case or

Id. at 199 F. 3d 1041-42.

The court of appeals

Based on specific facts in the record and the fact
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that each plaintiff had only been stopped once in ten years, the

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court found it “not sufficiently likely that [either plaintiff]

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will again be stopped by the Border Patrol.”

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Appeals therefore held that “[i]n the absence of a likelihood of

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injury to the named plaintiffs, there is no basis for granting

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injunctive relief that would restructure the operations of the

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Border Patrol and that would require ongoing judicial supervision

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of an agency normally, and properly, overseen by the executive

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branch.”

Id.

Id.

The Court of

Finally, the court held that even though unnamed

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plaintiffs had been stopped more frequently, and more recently

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and therefore “might well be able to demonstrate the likelihood

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of injury required to pursue equitable relief of the sort sought

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by [the named plaintiff], injunctive relief “is not available

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based on alleged injuries to unnamed members of a proposed

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class.”

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Id. at 1045.

Plaintiff relies primarily on LaDuke v. Nelson, 762 F.2d

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1318 (9th Cir. 1985).

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permanent injunction enjoining the INS from conducting searches

19

of migrant farm housing without warrants, probable cause, or

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articulable suspicion.

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(1) The district court in LaDuke had made findings on the

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likelihood of recurrent injury, while the district court in Lyons

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had not; (2) the district court in LaDuke had “explicitly found

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that the defendants engaged in a standard pattern of officially

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sanctioned officer behavior” that violated the constitution, in

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contrast to the Lyons finding of an absence of such sanctioning

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by the LAPD; (3) Lyons involved federal court intervention in

In LaDuke, the court of appeals affirmed a

The court distinguished Lyons as follows:

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state police affairs, implicating federalism concerns; and (4)

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plaintiffs in LaDuke were a certified class.

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Lyons, Hodgers-Durgin, and Rodriguez all stand for the

4

proposition that plaintiffs’ claim for injunctive relief must be

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resolved on an evidentiary record and not at the pleading stage.

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Defendants’ motion to dismiss plaintiff’s claim for injunctive

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relief will be denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1.

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Defendants’ motion to dismiss (ECF No. 8) is granted in

part as follows:

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12

a.

Plaintiff’s first cause of action is dismissed with

leave to amend.

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b.

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to the City.

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c.

Plaintiff’s eighth cause of action is dismissed as

Plaintiff’s claim for punitive damages is

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dismissed.

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In all other respects, defendants’ motion to dismiss is denied.

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2.

Plaintiff is granted thirty days from the date of this

order in which to file and serve an amended complaint.
3.

Defendants shall respond to the amended complaint within

twenty days of service thereof.

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IT IS SO ORDERED.

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DATED:

November 12, 2013.

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