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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHANA McCLOUD, an individual, 12 Plaintiff, 13 14 15 16 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, 17 Defendants. 18 I. 19 BACKGROUND1 Plaintiff Shana McCloud was a passenger in a car being 20 21 driven by Jose Orosco (not a party). When a California Highway 22 Patrol officer (as yet unidentified), tried to pull the car over, 23 Orosco sped away, initiating a car chase that was apparently 24 joined by at least one other unidentified officer. 25 crashed into a fence, the officers opened fire (they say Orosco 26 tried to run them over), killing Orosco. 27 1 After Orosco While shooting Orosco, For purposes of this dismissal motion, the court takes the allegations of the Complaint as true. 28 1 1 the officers also shot plaintiff, with one bullet piercing her 2 lung. 3 attention, but the officers did not immediately call for medical 4 attention, and instead put her in handcuffs. 5 later,” she was transported to the hospital. 6 Plaintiff immediately surrendered, and asked for medical “Several minutes Plaintiff asserts a Section 1983 supervisory claim against 7 John A. Farrow, the Commissioner of the California Highway 8 Patrol, for violation of her Fourth Amendment and Due Process 9 rights. Farrow is alleged to be a California state official, and 10 is sued “individually and in his official capacity.” 11 Complaint alleges that Farrow knew, or reasonably should have 12 known, of repeated acts of misconduct by the officers who shot 13 plaintiff and that he ratified and condoned their conduct. 14 Further, as a result of Farrow’s deliberate indifference to the 15 behavior of those officers, and his failure to train them 16 properly, the officers shot plaintiff in violation of her 17 constitutional rights. 18 The Defendant moves to dismiss, asserting that the Complaint 19 makes “mere conclusory allegations” that “merely sets forth the 20 elements of a 1983 claim without any specific reference to 21 anything that Commissioner Farrow did or failed to do.” 22 To Dismiss (ECF No. 4) at 4. 23 nothing for Commissioner Farrow to admit or deny.” 24 25 II. Motion Accordingly, Farrow says, “there is Id., at 4. ANALYSIS It is clear that a principal difficulty facing plaintiff at 26 the time she filed the Complaint was that she did not know the 27 identities of the CHP officers involved. 28 2 At oral argument on the 1 motion, the parties agreed that plaintiff now knows the names of 2 those officers. 3 Complaint to name those officers, and possibly, to dismiss 4 Commissioner Farrow, if such a voluntary dismissal is 5 appropriate. Plaintiff is now in a position to amend the 6 CONCLUSION 7 Accordingly, the court orders as follows: 8 9 1. amend within 30 days of the date of this order;2 and 10 11 The Complaint is hereby DISMISSED with leave to 2. Defendant’s motion to dismiss (ECF No. 4), is DENIED as moot.3 12 IT IS SO ORDERED. 13 DATED: April 7, 2014. 14 15 16 17 18 19 20 21 22 2 23 24 25 26 27 28 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). 3 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. 3

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