McCloud v. Farrow et al

Filing 18

ORDER signed by Judge Lawrence K. Karlton on 4/7/2014 ORDERING The Complaint is hereby DISMISSED with leave to amend within 30 days of the date of this order; and Defendant's 4 motion to dismiss, is DENIED as MOOT. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHANA McCLOUD, an individual,

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Plaintiff,

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No. CIV. S-13-2404 LKK/KJN

v.

ORDER

JOSEPH A. FARROW,
individually and in his
official capacity as
California Highway Patrol
Commissioner; and DOES 1-50,
inclusive; individually,

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Defendants.
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I.

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BACKGROUND1

Plaintiff Shana McCloud was a passenger in a car being

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driven by Jose Orosco (not a party).

When a California Highway

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Patrol officer (as yet unidentified), tried to pull the car over,

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Orosco sped away, initiating a car chase that was apparently

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joined by at least one other unidentified officer.

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crashed into a fence, the officers opened fire (they say Orosco

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tried to run them over), killing Orosco.

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After Orosco

While shooting Orosco,

For purposes of this dismissal motion, the court takes the allegations of
the Complaint as true.

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the officers also shot plaintiff, with one bullet piercing her

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lung.

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attention, but the officers did not immediately call for medical

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attention, and instead put her in handcuffs.

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later,” she was transported to the hospital.

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Plaintiff immediately surrendered, and asked for medical

“Several minutes

Plaintiff asserts a Section 1983 supervisory claim against

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John A. Farrow, the Commissioner of the California Highway

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Patrol, for violation of her Fourth Amendment and Due Process

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rights.

Farrow is alleged to be a California state official, and

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is sued “individually and in his official capacity.”

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Complaint alleges that Farrow knew, or reasonably should have

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known, of repeated acts of misconduct by the officers who shot

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plaintiff and that he ratified and condoned their conduct.

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Further, as a result of Farrow’s deliberate indifference to the

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behavior of those officers, and his failure to train them

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properly, the officers shot plaintiff in violation of her

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constitutional rights.

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The

Defendant moves to dismiss, asserting that the Complaint

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makes “mere conclusory allegations” that “merely sets forth the

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elements of a 1983 claim without any specific reference to

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anything that Commissioner Farrow did or failed to do.”

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To Dismiss (ECF No. 4) at 4.

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nothing for Commissioner Farrow to admit or deny.”

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II.

Motion

Accordingly, Farrow says, “there is
Id., at 4.

ANALYSIS

It is clear that a principal difficulty facing plaintiff at

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the time she filed the Complaint was that she did not know the

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identities of the CHP officers involved.

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At oral argument on the

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motion, the parties agreed that plaintiff now knows the names of

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those officers.

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Complaint to name those officers, and possibly, to dismiss

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Commissioner Farrow, if such a voluntary dismissal is

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appropriate.

Plaintiff is now in a position to amend the

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CONCLUSION

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Accordingly, the court orders as follows:

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amend within 30 days of the date of this order;2 and

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The Complaint is hereby DISMISSED with leave to

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Defendant’s motion to dismiss (ECF No. 4), is

DENIED as moot.3

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IT IS SO ORDERED.

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DATED:

April 7, 2014.

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The court notes that the Ninth Circuit has very recently spoken on two cases
involving officer-involved shootings following car chases, one involving the
CHP. See Gonzalez v. City of Anaheim, ___ F.3d ___, 2014 WL 1274551 (9th
Cir. 2014) (en banc), and Lal v. California, ___ F.3d ___, 2014 WL 1272781
(9th Cir. 2014).
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Because the court does not rule on the merits of defendant’s motion to
dismiss, it is up to plaintiff whether she will include Commissioner Farrow in
her amended complaint. However if plaintiff again sues Farrow, plaintiff
must, of course, ensure that her allegations against him comply with the
pleading requirements set forth in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009), and
the cases interpreting them.

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