Hughey et al v. Drummond et al

Filing 62

ORDER signed by District Judge Troy L. Nunley on 02/13/17 ORDERING that defendants' 50 Motion to Dismiss is GRANTED IN PART and DENIED IN PART as follows: Defendants' Motion to Dismiss Claim 11 is DENIED; Defendants' Motion to Dism iss Claim 12 is DENIED as to Sockman and Fellows and GRANTED WITH LEAVE TO AMEND as to Markus and Tyler; Defendants' Motion to Dismiss Claim 13 is DENIED; Defendants' Motion to Dismiss Claim 14 is GRANTED WITH LEAVE TO AMEND as to the City, Markus and Tyler; Defendants' Motion to Dismiss Claim 15 is DENIED as to Markus and GRANTED WITH LEAVE TO AMEND as to the City; Defendants' Motion to Dismiss Claim 16 is GRANTED WITH LEAVE TO AMEND as to the City, Fellows, and Sockman; D efendants' Motion to Dismiss Claim 17 is GRANTED WITH LEAVE TO AMEND as to the City and DENIED as to Fellows; Defendants' Motion to Dismiss Claim 18 is GRANTED WITHOUT LEAVE TO AMEND as to Sockman and DENIED as to the City and Fellows; and Defendants' Motion to Dismiss Claim 19 is DENIED as to the City and GRANTED WITH LEAVE TO AMEND as to Sockman and Drummond. Plaintiffs have 30 days to file a Third Amended Complaint. Plaintiffs are not permitted leave to amend beyond the confines of this order. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN HUGHEY & JESSICA HUGHEY,

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Plaintiffs,

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No. 2:14-cv-00037-TLN-AC

v.
DAN DRUMMOND, CITY OF WEST
SACRAMENTO, CHRISTOPHER
WRIGHT, KENNETH FELLOWS, TOD
SOCKMAN, GERRIT MARKUS, TRENT
TYLER, & NATHAN STEELE

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ORDER RE DEFENDANTS’ MOTION TO
DISMISS PLAINTIFFS’ SECOND
AMENDED COMPLAINT

Defendants.

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This matter is before the Court on Defendants Dan Drummond (“Drummond”), City of

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West Sacramento (the “City”),1 Kenneth Fellows (“Fellows”), Tod Sockman (“Sockman”), Gerrit

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Markus (“Markus”), Trent Tyler (“Tyler”), and Nathan Steele (“Steele”) (collectively

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“Defendants”) Motion to Dismiss Plaintiffs’ Mr. and Mrs. Hughey’s (collectively “Plaintiffs”)

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Second Amended Complaint (“SAC”).2 (ECF Nos. 50, 45.) For the reasons discussed below, the

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motion to dismiss is GRANTED IN PART and DENIED IN PART.

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The factual allegations in the SAC refer primarily to the West Sacramento Police Department (“WSPD”)
and its officers. The Court refers to a single public entity defendant, the City, with the understanding that the WSPD
is a division of the City.
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Defendant Wright does not join in the instant Defendants’ motion to dismiss. Wright has answered the
SAC. (ECF No. 48.)

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I.

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In summary,3 WSPD officers Wright, Markus, and Tyler arrived at the Hughey residence

FACTUAL ALLEGATIONS

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on the night of July 9, 2012, in response to a 9-1-1 call regarding a domestic disturbance at

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Plaintiffs’ residence. Plaintiffs allege that upon arrival, Wright kicked in the door to the home

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and shot Mr. Hughey in the abdomen without provocation. Immediately after the shooting and

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during the subsequent investigation, Wright allegedly fabricated a false version of the events that

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occurred in order to minimize his culpability. (SAC ¶¶ 9–23.)

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Following the shooting, Mr. Hughey was taken to the hospital and underwent surgery.
His arraignment occurred without his presence and he posted bond on July 13, 2012. Until his

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bond was posted, Mr. Hughey remained in the custody of the WSPD and was confined to his

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hospital room. While hospitalized, Mr. Hughey missed the birth of Plaintiffs’ son. Mr. Hughey

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was discharged from the hospital on July 15, 2012. (SAC ¶¶ 29–47.)

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Immediately following the shooting and later that night, WSPD officers entered the

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Hughey residence and seized two laptops and a cell phone, for which they later obtained a

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warrant to search. Plaintiffs allege that on July 10, 2012, the WSPD falsely reported to

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Sacramento media sources that an officer had shot a man who was reaching for the officer’s gun.

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(SAC ¶¶ 28, 31–32.)

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Defendant Fellows, the lead detective investigating the matter, engaged in harassing and

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defamatory behavior toward Plaintiffs throughout the course of the investigation. Plaintiffs assert

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that as a result of the shooting and investigation, Mrs. Hughey lost custody of her toddler son,

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with whom she shared custody with her ex-husband. (SAC ¶¶ 51–56.)

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The Yolo County district attorney eventually brought felony charges against Mr. Hughey

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based on the events occurring the night of July 9, 2012. Plaintiffs state that at the preliminary

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hearing in March, 2013, officers present on the night of the shooting testified falsely as to what

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prompted the shooting. Plaintiffs allege generally that the WSPD delayed in investigating the

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incident and attempted to cover up the true events that occurred. In May 2013, the WSPD issued

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More detailed allegations, relative to the individual causes of action, are stated as necessary, infra. The
Court has given a fuller statement of the factual allegations in a prior order on November 6, 2014. (ECF No. 33.)

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a written determination of excessive force against Wright. Wright was subsequently terminated.

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In December 2013, the Yolo County Superior Court dismissed with prejudice the criminal

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charges against Mr. Hughey related to the shooting. (SAC ¶¶ 51–90.)

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II.

PROCEDURAL HISTORY

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Plaintiffs filed the original complaint on January 1, 2014, and a first amended complaint

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on November 20, 2014. (ECF Nos. 1 & 34.) On July 16, 2015, this Court granted and denied in

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part Defendants’ motion to dismiss the first amended complaint. (ECF Nos. 35, 41.) Plaintiffs

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filed the instant SAC on August 15, 2015. (ECF No. 45.) On September 17, 2015, Defendants

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filed a motion to partially dismiss the SAC.4 (ECF No. 50.) Plaintiffs filed an opposition and

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Defendants filed a reply. (ECF Nos. 52, 54.)
Defendants move only to dismiss the federal claims.5 The claims are each brought under

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42 U.S.C. § 1983. Some claims are brought by both Plaintiffs and others are brought by an

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individual Plaintiff. The claims, stated here essentially verbatim, are:

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Claim 11 (Mr. Hughey): Excessive Use of Force by the City and Wright;

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Claim 12 (both Plaintiffs): Violation of Right to Privacy – Unlawful Entry by the City,

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Wright, Fellows, Sockman, Markus, and Tyler;
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Claim 13 (both Plaintiffs): Excessive Use of Force and Unreasonable Seizure by the
City and Wright;

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Claim 14 (Mr. Hughey): Excessive Use of Force and Unreasonable Seizure by the
City, Wright, Markus, and Tyler;

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Claim 15 (Mrs. Hughey): Excessive Use of Force and Unreasonable Seizure by the

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Defendants request the Court take judicial notice of Search Warrant No. 12-197 to search Plaintiffs’
computers and cellphones, Search Warrant No. 12-198 to search the person of Mr. Hughey and obtain DNA swabs,
the PACER docket in Macias et al v. Godden et al., Eastern District of California case No. 2:08-cv-00895-MCEJFM, and the PACER docket in Galven-Magana v. City of West Sacramento et al., Eastern District of California case
No. 2:06-cv-01665-LKK-DAD. (Req. for Judicial Notice, ECF No. 50-2.) Under Federal Rule of Evidence 201 a
court can take judicial notice of a document when the subject “can be accurately and readily determined from the
sources whose accuracy cannot reasonably be questioned.” For the reasons stated in Defendants’ request and noting
no opposition by Plaintiffs to the request, the Court GRANTS Defendants’ request, and takes judicial notice of the
attached exhibits pursuant to Federal Rule of Evidence 201 (ECF No. 50–2 at 3–34).
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Mr. Hughey brings ten state law claims in connection with the facts. The state law claims are: 1) assault; 2)
battery; 3) negligence; 4) intentional infliction of emotional distress; 5) defamation; 6) intrusion (invasion of
privacy); 7) false arrest – false imprisonment; 8) trespass to land; 9) trespass to chattels; and 10) conversion.

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City and Markus;
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Sockman, and Fellows;
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Claim 18 (both Plaintiffs): Unreasonable Search of the Hughey’s Home without a
Valid Warrant by the City, Sockman, and Fellows;

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Claim 17 (Mr. Hughey): Unreasonable Search of Mr. Hughey’s Person by the City and
Fellows;

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Claim 16 (Mr. Hughey): Excessive Use of Force and Unlawful Arrest by the City,

Claim 19 (both Plaintiffs): Failure to Train and Supervise by the City, Drummond, and
Sockman.

Defendants move for dismissal both on the basis that Plaintiffs fail to plead adequate facts

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to withstand dismissal and that individual Defendants are entitled to qualified immunity. The

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Court first addresses whether there are adequate facts pled for each cause of action. If so, the

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Court next addresses whether individual Defendants are entitled to qualified immunity.

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III.

STATUTORY FRAMEWORK

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A.

Standard of Review: Motion to Dismiss

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Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” On a motion to dismiss, the

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factual allegations of the complaint are assumed to be true. Cruz v. Beto, 405 U.S. 319, 322

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(1972). A court is bound to give plaintiff the benefit of every reasonable inference to be drawn

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from the well-pleaded allegations of the complaint. Retail Clerks Int’l Ass’n v. Schermerhorn,

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373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege “‘specific facts’ beyond those necessary

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to state his claim and the grounds showing entitlement to relief.” Bell Atlantic v. Twombly, 550

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U.S. 544, 570 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2009)). “A claim

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has facial plausibility when the pleaded factual content allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

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662, 678–79 (citing Twombly, 550 U.S. at 556).

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Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of
factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.
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1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an

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unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A

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pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

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(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”). Additionally, it is inappropriate to assume that the plaintiff “can

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prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that

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have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of

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Carpenters, 459 U.S. 519, 526 (1983).

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Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough

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facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting

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Twombly, 550 U.S. at 570). While the plausibility requirement is not akin to a probability

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requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.”

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Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to

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draw on its judicial experience and common sense.” Id. at 679.

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B.

Qualified Immunity

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Qualified immunity protects government officers from “liability for civil damages insofar

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as their conduct does not violate clearly established statutory or constitutional rights of which a

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reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

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“Because qualified immunity is ‘an immunity from suit rather than a mere defense to liability...it

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is effectively lost if a case is erroneously permitted to go to trial.’” Pearson v. Callahan, 555

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U.S. 223, 231 (2009) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis deleted)).

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The Supreme Court has “repeatedly stressed the importance of resolving immunity questions at

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the earliest possible stage in litigation.” Id. at 232 (citing Hunter v. Bryant, 502 U.S. 224, 227

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(1991)).

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To determine whether an officer is entitled to qualified immunity, courts ask (1) whether

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the alleged misconduct violated a right and (2) whether the right was “clearly established” at the

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time of the alleged misconduct. Id. at 223–25. The Court decides in its discretion whether to
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address the first or second prong first. However, if the Court initially addresses the first prong

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and finds that no constitutional right was violated under the alleged facts, the inquiry ends and

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defendants prevail. Saucier v. Katz, 533 U.S. 194, 201 (2001).

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“‘[A] defendant presenting an immunity defense on a Rule 12(b)(6) motion instead of a

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motion for summary judgment must accept the more stringent standard applicable to this

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procedural route.’” Romero v. Washoe Cty., No. 3:11-CV-00582-LRH, 2013 WL 5592269, at *2

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(D. Nev. Oct. 9, 2013) (citing McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004)). “Only

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where a defendant’s entitlement to qualified immunity can be established ‘based [solely] on facts

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appearing on the face of the complaint’ is dismissal appropriate.” Id.; Groten v. California, 251

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F.3d 844, 851 (9th Cir. 2001). Further, “the plaintiff is entitled to all reasonable inferences from

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the facts alleged, not only those that support his claim, but also those that defeat the immunity

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defense.” McKenna, 386 F.3d at 436. “A government official sued under Section 1983 is entitled

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to qualified immunity at the motion to dismiss stage unless the Plaintiff pleads sufficient facts to

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allege that (1) the official violated a statutory or constitutional right, and (2) the right was ‘clearly

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established’ at the time of the challenged conduct.” Garcia v. City of King City, No. 14-CV-

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01126-BLF, 2015 WL 1843944, at *1 (N.D. Cal. Apr. 8, 2015) (denying defendant’s motion to

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dismiss based on qualified immunity, without prejudice to renew at a later stage of the litigation).

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IV.

ANALYSIS

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A.

Claim 11 (Mr. Hughey): Excessive Force by the City and Wright

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Defendant Wright has not moved to dismiss this cause action. It appears that Mr. Hughey

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bases this claim only on the shooting itself and not the ensuing events that occurred after other

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officers entered the residence. (SAC ¶¶ 163–183.) In summary, he alleges that Wright

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unjustifiably kicked in the door of Plaintiffs’ home and shot Mr. Hughey. (SAC ¶¶ 9–13.)

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Construing these allegations in favor of Plaintiff, he states a claim against Wright for excessive

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force under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386 394–95 (1989) (“all

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claims that law enforcement officers have used excessive force—deadly or not—in the course of

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an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the

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Fourth Amendment …”)
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Mr. Hughey also attempts to state a claim for excessive force against the City. As the

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City, “a local government may not be sued under § 1983 for an injury inflicted solely by its

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employees or agents. Instead, it is when execution of a government’s policy or custom, whether

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made by its lawmakers or by those whose edicts or acts may fairly be said to represent official

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policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell v.

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Dep.’t of Social Servs., 436 U.S. 658, 694 (1978). A plaintiff may show: (1) a longstanding

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practice or custom which constitutes the standard operating procedure of the local government

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entity; (2) a relevant decision-making official was, as a matter of state law, a final policymaking

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authority whose edicts or acts may fairly be said to represent official policy in the area of

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decision; or (3) an official with final policymaking authority either delegated that authority to, or

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ratified the decision of, a subordinate. Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir.

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2005) (citing Ulrich v. City and County of San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002))

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(internal quotation marks and citations omitted). “The custom must be so ‘persistent and

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widespread’ that it constitutes a permanent and well settled city policy.” Trevino v. Gates, 99

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F.3d 911, 918 (9th Cir. 1996) (quoting Monell, 436 U.S. at 691). “Liability for improper custom

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may not be predicated on isolated or sporadic incidents; it must be founded upon practices of

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sufficient duration, frequency and consistency that the conduct has become a traditional method

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of carrying out policy.” Id.

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Further, the “inadequacy of police training may serve as the basis for § 1983 liability only

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where the failure to train in a relevant respect amounts to deliberate indifference to the

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constitutional rights of persons with whom the police come into contact.” City of Canton, Ohio v.

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Harris, 489 U.S. 378, 379 (1989). “Monell will not be satisfied by a mere allegation that a

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training program represents a policy for which the city is responsible. Rather, the focus must be

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on whether the program is adequate to the tasks the particular employees must perform, and if it

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is not, on whether such inadequate training can justifiably be said to represent city policy.

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Moreover, the identified deficiency in the training program must be closely related to the ultimate

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injury.” Id.

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Plaintiff argues “WSPD has a policy and custom of routinely and intentionally
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encouraging the excessive use of force by its officers.” (ECF No. 52 at 9.) Specifically, Plaintiff

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alleges:

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Prior to becoming a police officer, Wright served in the military. Afterwards, he went

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to work for the Sacramento Police Department, where he was to receive 24 hours of

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training defensive tactics on October 14, 2011, but failed to complete the course.

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Wright was terminated in January 2012, but was immediately hired by WSPD. WSPD

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personnel presumably performed a background check, making supervisors aware of

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Wright’s experience and history. (SAC ¶¶ 168–169.)

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While employed by WSPD, Wright posted on his Facebook page a picture of him

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posing with a fully automatic assault rifle while in his street clothes, thus supporting

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an inference that the WSPD was aware Wright was trained in combat. (SAC ¶ 170.)

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Wright was told on more than one occasion by his WSPD Field Supervising Officer

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that he needed to “slow down.” (SAC ¶ 171.) On this occasion Wright did not follow

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standard procedures as evidenced by his failure to activate his audio, making entry

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without his partner, and making entry without trying to communicate with the

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occupants. (SAC ¶ 171.) When the instant shooting occurred, Wright “had yet to pass

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probation.” (SAC ¶ 172.) “In short, WSPD supervisors were aware of specific issues

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with Officer Wright and still armed him with a gun and sent him out on his own.”

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(SAC ¶ 173.) Defendants Sockman and Drummond exercised some supervisory role

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over Wright and failed to “take adequate action to prevent Officer [Wright’s] wrongful

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conduct or by expressly or implicitly approving Wright’s wrongful conduct.” (SAC

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¶¶ 181–183.)

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Plaintiffs allege and/or cite other specific instances of police excessive force by

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WSPD officers, occurring in 2006 and 2011–2014, including another incident

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involving the Hugheys and multiple excessive force claims filed against Defendant

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Fellows. (SAC ¶¶ 104–113.)

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Defendants counter that the above-stated allegations are not sufficient to state a cause of

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action for municipal liability. Defendants submit Plaintiffs have admitted the shooting violated
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City policy (SAC ¶ 65). Additionally, Plaintiffs have admitted Defendant Markus activated his

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audio. (SAC ¶ 26). There is no clear connection between the other cited incidents of WSPD

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police misconduct and the instant case. For example, two of the cited cases were settled before

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trial without substantive rulings.6 See Simms v. City of N.Y., 480 F. Appx. 627, 630 (2d Cir.

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2012) (finding existence of a suit against city police insufficient to establish a Monell custom

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where no violation had been found). In the case against Defendant Fellows referenced by

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Plaintiffs, there was no deadly force claim and he prevailed on summary judgment and then was

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affirmed on appeal.7 The cases cited by Plaintiffs also occurred over a long time span. Relatively

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speaking, those cases represent a low proportion of excessive force incidents to non-excessive

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force incidents. With respect to allegations of insufficient training, Defendants argue essentially

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that evidence of a single officer’s inadequate training does not establish municipal liability. See

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Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) (affirming a grant of summary

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judgment in favor of the municipality). Defendants also argue Plaintiffs do not demonstrate that

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failing to give veterans extra training as law enforcement officers constitutes the City’s deliberate

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indifference to the citizens to whom WSPD officers come in contact with.

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Plaintiffs have cited other cases involving excessive force by the WSPD and submit that

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these cases support a practice or custom on the part of the WSPD. This Court agrees and finds

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that Plaintiff adequately alleges the WSPD has a “longstanding practice or custom” of

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encouraging excessive force by its officers. Menotti, 409 F.3d at 1147. Defendants cite cases in

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support of their argument that City is not liable. However, these cases dealt with final judgments

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or summary judgments. (ECF No. 50-1 at 12–15.) See e.g. Canton, supra; Blankenhorn, supra;

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Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006); Connick v. Thompson, 131 S. Ct.

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1350, 1360 (2011); Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985); Wilson v. Cook

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County, 742 F.3d 775, 780 (7th Cir. 2014); Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir.

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1996). For example, whether the WSPD actually encourages excessive force by permitting

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officers to not activate their audio devices is a factual issue to be resolved at a later stage in this

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Macias, 2:08-cv-00895 (E.D. Cal.); Galvan-Magana, 2:06-cv-01665 (E.D. Cal).
Falconer v. City of W. Sacramento, 2011 Cal. App. Unpub. LEXIS 5588, *11 and *15 (2011).

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litigation. Whether that is true requires factual inquiry. The above-stated allegations “give fair

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notice and [] enable the [City] to defend itself effectively,” and taken as true they plausibly

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suggest an entitlement to relief. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Therefore,

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Plaintiffs meet the pleading requirements to survive a motion to dismiss. See also Mateos–

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Sandoval v. County of Sonoma, No. C11–5817 THE, 2013 WL 415600, at *5 (N.D. Cal. Jan.31,

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2013); Boarman v. Cty. of Sacramento, No. 2:11-CV-02825 KJM, 2013 WL 1326196, at *4 (E.D.

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Cal. Mar. 29, 2013). Defendants’ motion to dismiss Claim 11 in the second amended complaint

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is DENIED.

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B.

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Claim 12 (both Plaintiffs): Violation of Right to Privacy – Unlawful Entry by the
City, Wright, Fellows, Sockman, Markus, and Tyler

Defendants contend that Markus, Tyler, Fellows, and Sockman did not violate Plaintiffs’

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right to privacy because they were entitled to enter the home under exigent circumstances to

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render aid to Mr. Hughey and to later investigate the incident.8 (ECF No. 50-1 at 7–9.) Plaintiffs

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assert Marks and Tyler should have waited outside and that Fellows and Sockman needed to gain

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consent to enter the next day. (ECF No. 52 at 12.)

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The Fourth Amendment protects against unlawful searches and seizures. The Supreme

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Court has inferred from the text of the Fourth Amendment that a warrant must usually be secured

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before a search or entry. Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016). However, “a

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warrantless entry by criminal law enforcement officials may be legal when there is compelling

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need for official action and no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509

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(1978); see also Warden v. Hayden, 387 U.S. 294, 299 (1967) (upholding warrantless entry of a

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house by police in pursuit of armed robber); United States v. Santana, 427 U.S. 38, 42–43 (1976)

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(warrantless entry justified by exigent circumstances).

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i.

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Plaintiffs sought to state a similar claim against Markus and Tyler in the FAC, under a

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Markus and Tyler

state law cause of action. This Court noted in its previous order that it is undisputed Wright,

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Wright has not joined the instant motion to dismiss. Therefore, Plaintiffs’ claim for unlawful entry against
Wright survives.

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Markus, and Tyler arrived at the residence because of a call to police regarding a domestic

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disturbance.9 Subsequently Wright shot Mr. Hughey and afterwards Markus and Tyler entered

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the residence. Plaintiffs appear to allege Markus and Tyler did not directly see Mr. Hughey as he

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was shot, and these officers relied upon Wright’s account of the shooting in the aftermath.10

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Plaintiff also alleges that Markus and Wright engaged in a “collusion and conspiracy” to cover up

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the true justification for the shooting. (SAC ¶ 17.) However, this allegation is not particularly

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relevant to whether, at the moment the shooting occurred and then shortly afterwards when

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Markus and Tyler entered the home, there were exigent circumstances justifying Markus’s and

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Wright’s entry.

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Overall, the facts pled, accepted as true, establish that the shooting created exigent

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circumstances for Markus and Tyler to enter the residence. Welsh v. Wisconsin, 466 U.S. 740,

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749–50 (1984); Minnesota v. Olson, 495 U.S. 91, 100 (1990). (ECF No. 41 at 13, 23.) “Under

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the emergency aid exception [] officers may enter a home without a warrant to render emergency

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assistance to an injured occupant or to protect an occupant from imminent injury.” Kentucky v.

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King, 563 U.S. 452, 460 (2011) (internal quotations omitted). For the emergency aid exception to

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apply the officers must have an objectively reasonable belief that someone inside the home is

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seriously injured, under threat of injury, or needs serious aid. Brigham City, Utah v. Stuart, 547

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U.S. 398, 403–04 (2006). Here, Plaintiffs allege the door to the Hughey home was forced in and

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Plaintiffs do not allege information regarding the domestic disturbance call that resulted in the Defendants
being dispatched to the Hughey residence. However, the Court took judicial notice of the warrant obtained to search
the Hughey’s electronic devices. In support of the warrant, an affiant explained that police received a call from a
reporting party who stated that her husband had attacked her and was going to attack her again. (ECF No. 50-2, Ex.
A at 1.) This call precipitated Defendants presence at the Hughey residence. In some circumstances a report of
domestic disturbance may constitute exigent circumstances to enter a home without a warrant. See U.S. v. Black, 482
F.3d 1035, 1039–40 (9th Cir. 2006) (finding exigent circumstances where the police “feared that [the victim] could
have been inside the apartment, badly injured and in need of medical attention”); but see Thomas v. Dillard, 818 F.3d
864, 882 (9th Cir. 2016) (finding that a warrant was necessary in a search because there was no sign of an ongoing or
completed domestic violence and the proposed perpetrator was neither aggressive nor confrontational to police).
Because the Court finds the shooting clearly established exigent circumstances, the Court does not reach a finding on
whether the circumstances in the instant case would rise to the level necessary to permit a warrantless entry in a
domestic disturbance incident.
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Plaintiffs provide no detail on where Tyler was when the shooting occurred. Plaintiffs state Markus “was
coming around the corner of the row of four homes, literally seconds away and [] saw the muzzle flash from
[Wright’s] shooting of Mr. Hughey … [He] inquired into what had happened that would cause an unarmed man to be
shot within his home. [Wright] immediately lied and stated that Mr. Hughey reached for his gun in an effort to cover
up [Wright’s] wrongful act.” (SAC ¶ 16.)

11

1

Mr. Hughey was immediately shot while still inside the home. (See SAC ¶¶ 12–15.)

2

Specifically, Plaintiffs allege that “Mr. Hughey was located at the end of the foyer, about six or

3

seven feet inside the house” after he was shot. (SAC ¶ 15.) There are no facts suggesting that the

4

door to the residence closed after Wright entered the foyer. Therefore, Markus and Taylor were

5

able to see inside the home and could form a reasonable belief that Mr. Hughey was seriously

6

injured based on the “blood gushing from his left side.” (SAC ¶ 13.) Plaintiffs further admit that

7

Mr. Hughey was “rushed for emergency, life-saving surgery” cementing the need for emergency

8

aid. (SAC ¶ 17.)The case law does not require that Markus and Tyler call for additional

9

personnel and the ambulance from outside the home, as Plaintiffs suggest they should have done.

10

(ECF No. 52 at 12.)

11

Furthermore, if the facts pled did lead to a plausible claim for unlawful entry and/or a

12

violation of the right to privacy by these Defendants, they are entitled to qualified immunity.

13

Plaintiffs plead no facts supporting a claim that it is a violation of a clearly established right for

14

an officer responding to a domestic violence call to enter a home immediately upon hearing

15

and/or witnessing a shooting that has just occurred within the home. Therefore, Defendants’

16

motion to dismiss Claim 12 against Markus and Tyler is GRANTED.

17

ii.

18

The Court notes that Plaintiffs have brought a separate claim, claim 18, for an unlawful

19

warrantless search of the home by Sockman and Fellows. The Court considers facts relevant to

20

that claim separately. Here, the Court considers just whether Plaintiffs state a claim for the

21

unlawful entry itself by Sockman and Fellows. As to Fellows and Sockman, Plaintiffs allege they

22

“intentionally entered Plaintiffs’ home while acting in the performance of their official duties and

23

under the color of law. Defendants[’] conduct violated Plaintiffs’ right to privacy and Plaintiffs

24

were harmed.” (SAC ¶ 186.) “After Hughey’s forced removal and despite having secured the

25

home, [Fellows and Sockman] unlawfully entered the Hughey home without a warrant and

26

without exigent circumstances.” (SAC ¶ 187.)

27
28

Fellows and Sockman

Defendants argue that once Markus and Tyler entered the house, no right of privacy
remained against other officers (including Fellows and Sockman) to enter the house to
12

1

investigate. (ECF No. 50-1 at 8.) Defendants cite United States v. Rubio, 727 F.2d 786, 796–97

2

(9th Cir. 1983), which held, “[o]nce consent has been obtained from one with authority to give it,

3

any expectation of privacy has been lost. We seriously doubt that the entry of additional officers

4

would further diminish the consenter’s expectation of privacy, and, in the instant case, any

5

remaining expectation of privacy was outweighed by the legitimate concern for the safety of a

6

single officer conducting a search of a house known to contain firearms.” However, this holding

7

is inapposite, because Plaintiffs do not allege they consented to entry by Wright, Markus, or

8

Tyler. Plaintiffs’ position is that they did not give consent, and that Sockman and Fellows

9

unlawfully entered the home without a warrant notwithstanding this lack of consent.

10

Defendants also argue the shooting created a potential felony situation, which the officers

11

were entitled to investigate by promptly viewing the scene. (ECF No. 50-1 at 9.) In support,

12

Defendants cite Michigan v. Tyler, which held: “In summation … entry to fight a fire requires no

13

warrant, and that once in the building, officials may remain there for a reasonable time to

14

investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire

15

must be made pursuant to the warrant procedures governing administrative searches.” Tyler, 436

16

U.S. at 511. Those facts (involving a fire and the ensuing investigation) are clearly not analogous

17

to the instant case. However, the Supreme Court’s ultimate conclusion is beneficial in the instant

18

case, “additional entries to investigate” must be made pursuant to a warrant. Id. at 511. In

19

People v. Boragno, the California Fifth District Court of Appeals held that once an initial

20

emergency ceased to exist a subsequent entry without a warrant was unlawful. 232 Cal. App. 3d

21

378, 386–87 (1991) (citing Mincey v. Arizona, 437 U.S. 385, 395 (1978) for the proposition that

22

there is no murder scene or assault exception to the warrant requirement). Here, Plaintiffs allege

23

that “Fellows and Lt. Sockman unlawfully entered the Hughey home without a warrant and

24

without exigent circumstances” after Mr. Hughey had already been “forcibly removed.” (SAC ¶

25

187.) The initial emergency situation surrounding Mr Hughey, whether from the shooting or the

26

domestic violence incident, ceased to exist prior to Sockman and Fellows entry.11 Therefore,

27
11

28

As stated in the Court’s previous order (ECF No. 41 at 3, n. 3) it is the Court’s understanding that the
Sacramento Superior Court eventually found there was sufficient evidence to bring charges against Mr. Hughey

13

1

Plaintiffs have adequately plead a claim for warrantless entry against Sockman and Fellows.

2

Defendants’ motion to dismiss Claim 12 against Fellows and Sockman is DENIED.

3
4
5

C. Claim 13 (both Plaintiffs): Excessive Use of Force and Unreasonable Seizure of
Plaintiffs in their Home by the City and Wright
“A person is seized by the police and thus entitled to challenge the government’s action

6

under the Fourth Amendment when the officer, by means of physical force or show of authority,

7

terminates or restrains his freedom of movement through means intentionally applied.” Brendlin

8

v. California, 551 U.S. 249, 254 (2007) (internal quotation marks and citations omitted). “A

9

person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of

10

the circumstances surrounding the incident, a reasonable person would have believed that he was

11

not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). “Examples of

12

circumstances that might indicate a seizure, even where the person did not attempt to leave,

13

would be the threatening presence of several officers, the display of a weapon by an officer, some

14

physical touching of the person of the citizen, or the use of language or tone of voice indicating

15

that compliance with the officer’s request might be compelled.” Id.

16

The Court has already addressed liability on the part of Wright and the City, with respect

17

to excessive force directed at Mr. Hughey.12 It appears an additional relevant allegation would be

18

that immediately after the shooting, Wright pointed his weapon at Mr. Hughey and ordered him to

19

the ground. (SAC ¶ 191.) For the same reasons, the Court finds Mr. Hughey states a claim for a

20

“seizure” under the Fourth Amendment against Wright and the City.

21

With respect to Mrs. Hughey, the relevant allegation is that immediately after the shooting

22

occurred, Wright yelled at Mrs. Hughey and ordered her to the ground with his weapon drawn.

23

(SAC ¶¶ 14, 119.) This allegation similarly states a claim for an unlawful seizure because a

24

reasonable person would not feel she was free to leave rather than obey the officer’s command to

25

get on the floor. Brendlin, 551 U.S. at 254; Mendenhall, 446 U.S. at 554. For the reasons stated,

26

related to domestic violence and for charges related to resisting arrest and attempting to remove Wright’s firearm.
(See Transcript of Preliminary Hearing, Def.’s Request for Judicial Notice, ECF No. 35-3.) Conduct underlying both
sets of charges occurred on July 9, 2012. Eventually, Mr. Hughey pled guilty to misdemeanor corporal injury. The
felony charges related to resisting arrest and removing Wright’s firearm were dismissed with prejudice.
12
See supra section IV, subsection A.

27
28

14

1

supra, regarding Monell liability on the part of the City for encouraging excessive force, the

2

Court finds Mrs. Hughey states a claim against the City for a seizure. Therefore, Defendants’

3

motion to dismiss Claim 13 is DENIED.

4

D. Claim 14 (Mr. Hughey): Excessive Use of Force and Unreasonable Seizure by the

5

City, Wright, Markus, and Tyler

6

i. Wright and City
Claim 14 adds the allegation that Mr. Hughey was “aggressively hand-cuffed at gunpoint”

7
8

by Wright, Markus, and Tyler. (SAC ¶ 195.) Besides this new “aggressive handcuffing”

9

allegation, Plaintiffs rely on the same facts as the previous claim to support their excessive force

10

and unreasonable seizure claim against Wright. With respect to the handcuffing, Defendants

11

allege that handcuffing an arrestee incident to seizure and in anticipation of transport is

12

reasonable to affect an arrest and to protect the officers during transport. Defendants further

13

assert that handcuffing is not actionable absent allegations of demonstrable physical injury or

14

unheeded complaints about excessive tightness. (ECF No. 50-1 at 15.) See Dillman v. Tuolumne

15

Cty., No. 1:13-CV-00404 LJO, 2013 WL 1907379, at *8 (E.D. Cal. May 7, 2013) (collecting

16

cases); Wall v. Cty. of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004) (“It is well-established that

17

overly tight handcuffing can constitute excessive force”); Neague v. Cynkar, 258 F.3d 504, 508

18

(6th Cir. 2001) (“when there is no allegation of physical injury, the handcuffing of an individual

19

incident to a lawful arrest is insufficient as a matter of law to state a claim of excessive force

20

under the Fourth Amendment”). The Court agrees.
Plaintiffs’ allegation that Wright “aggressively” handcuffed Mr. Hughey is the only

21
22

allegation in support of this new excessive force claim against Wright. Plaintiffs have not made

23

any allegations about the tightness of the handcuffs or physical injury arising from Defendants

24

handcuffing Mr. Hughey. Absent this allegation, Claim 14 is merely a replication of Claim 13.

25

The Court has already addressed liability on the part of Wright and the City, with respect to

26

excessive force directed at Mr. Hughey and unlawful seizure.13 To find liability on the part of

27
28

13

See supra section IV, subsection A and section IV, subsection C.

15

1

City for the same actions of Wright alleged in Claim 13 would permit Plaintiffs to sue for the

2

same actions in two separate claims. Asserting two identical claims in a law suit is redundant and

3

courts are permitted to strike redundant claims pursuant to Federal Rule of Civil Procedure 12(f).

4

As Plaintiffs attempted to allege new facts separating the two claims, the Court refrains from

5

striking the claim and instead, GRANTS Defendants’ motion to dismiss as to the City with leave

6

to file an amended complaint.

7

For the reasons stated below, the Court does not find Plaintiffs have alleged liability on

8

the part of the City, based upon the acts committed by Markus, Tyler, or those unnamed

9

defendants responsible for the blood draw and transporting Mr. Hughey to the hospital.

10

Therefore, Defendants’ motion to dismiss Claim 14 with respect to the City is GRANTED as to

11

the actions of Wright, Markus, Tyler and the unnamed defendants.

12

ii. Markus and Tyler
The relevant allegations are that after Mr. Hughey was shot, he was “aggressively hand-

13
14

cuffed at gunpoint” by Wright, Tyler, and Markus. (SAC ¶ 195.) Plaintiffs do not identify which

15

officer applied the handcuffs to Mr. Hughey, but make the allegation generally against all three

16

officers. Mr. Hughey “was then forcibly removed from his home.” (SAC ¶ 196.) The WSPD

17

“performed an unconsented blood draw on Mr. Hughey in the ambulance while Mr. Hughey was

18

bleeding out.” (SAC ¶ 197.) After surgery, Mr. Hughey was physically shackled to his hospital

19

bed by Fellows.14 (SAC ¶ 198.)

20

As discussed above, Plaintiffs have not alleged facts beyond an “aggressive” handcuffing

21

that would make this handcuffing by Markus and Tyler actionable under the Fourth Amendment.

22

Overall, Plaintiffs’ position is that there was no justification for the handcuffing, because Wright

23

unjustifiably shot him. (ECF No. 52 at 9.) However, Plaintiffs allege that Wright told Markus

24

that Mr. Hughey had reached for Wright’s gun, and it is undisputed that these Defendants were

25

responding to a domestic violence call. The Court understands that Mr. Hughey was charged

26

with domestic violence and eventually pled guilty to misdemeanor corporal injury, in connection

27
28

14

Plaintiffs do not bring this cause of action against Fellows.

16

1

with conduct occurring on the night of the shooting. Plaintiffs have alleged that Markus and

2

Wright colluded to fabricate a version of the events. (SAC ¶ 17.) However overall, Plaintiffs

3

appear to state that Markus did not directly see the shooting. Plaintiffs do not mention where

4

Tyler was specifically. (SAC ¶ 16: Markus “was coming around the corner of the row of four

5

homes, literally seconds away and [] saw the muzzle flash from [Wright’s] shooting of Mr.

6

Hughey … [He] inquired into what had happened that would cause an unarmed man to be shot

7

within his home. [Wright] immediately lied and stated that Mr. Hughey reached for his gun in an

8

effort to cover up [Wright’s] wrongful act.”) In light of the information available to Markus and

9

Tyler at the time of Mr. Hughey’s handcuffing, the handcuffing was justified. For these reasons,

10

the Court finds Plaintiffs have not alleged adequate facts to state a claim for excessive force and

11

unlawful seizure against Markus and Tyler, based on the handcuffing that occurred at the home.

12

As to the allegations that Mr. Hughey’s blood was drawn and he was forcibly taken from

13

his home to the hospital, Plaintiffs do not allege in the SAC that Markus and Tyler committed

14

these acts. “[O]nce a seizure has occurred, it continues through the time the arrestee is in the

15

custody of the arresting officers.” Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir. 1985).

16

“Therefore, excessive use of force by a law enforcement officer in the course of transporting an

17

arrestee gives rise to a section 1983 claim based upon a violation of the Fourth Amendment.” Id.

18

“The trip to the police station is a ‘continuing seizure’ during which the police are obliged to treat

19

their suspects in a reasonable manner.” Fontana v. Haskin, 262 F.3d 871, 879–80 (9th Cir. 2001).

20

With respect to the blood draw, Plaintiffs also do not explain how the drawing of Mr.

21

Hughey’s blood was part of an unlawful seizure beyond that necessary for his medical treatment

22

or that would suggest Markus and Tyler were treating Plaintiff in an unreasonable manner.

23

Plaintiffs allege the blood draw was “unconsented” but also allege he was “suffering shock and

24

bleeding out.” (SAC ¶ 197.) Furthermore, Plaintiffs allege that Mr. Hughey received “life-saving

25

surgery,” at the hospital. (SAC ¶ 198.) If Plaintiffs’ reasoning is followed, numerous instances

26

of “excessive force” would have occurred as part of Mr. Hughey’s medical treatment on the way

27

to the hospital and at the hospital even without Markus and Tyler present or participating.

28

Plaintiffs do not allege facts to distinguish the drawing of his blood from what the Court
17

1

understands to be an ongoing medical treatment that occurred immediately after the shooting and

2

in the days afterwards. Plaintiffs do not identify cases that have found a Fourth Amendment

3

violation to occur, based on an allegation that a gunshot victim and suspected felon had his blood

4

drawn, albeit without his consent, on the way to the hospital for treatment.

5

With respect to his shackled transport to the hospital, Plaintiffs have alleged that Wright

6

told other officers, including Markus and Tyler, that Mr. Hughey reached for his firearm and

7

appears to state no other officers except Wright directly saw the shooting. (SAC ¶¶ 17, 120, 195.)

8

“An officer is not liable for acting on information supplied by another officer, even if that

9

information later turns out to be wrong, if he has an objective reasonable, good-faith belief that he

10

is acting pursuant to proper authority. Espinosa v. City and County of San Francisco, 598 F.3d

11

528, 535 (9th Cir. 2010) (citing Motley v. Parks, 432 F.3d 1072, 1081–82 (9th Cir. 2005)).

12

Again, the thrust of Plaintiff’s allegations is that Wright shot Mr. Hughey outside the direct view

13

of any other officers, and then “immediately lied and stated that Mr. Hughey reached for his gun

14

in an effort to cover up” what had occurred.15 (SAC ¶ 16.) It is undisputed that Wright, Markus,

15

and Tyler were responding to a domestic violence call. Mr. Hughey was “bleeding out” from the

16

shooting. Plaintiffs do not provide additional facts indicating that the transport to the hospital

17

violated Mr. Hughey’s constitutional rights. Instead, Plaintiffs repeat throughout the complaint

18

that Mr Hughey received “life-saving surgery” at the hospital. (See SAC ¶¶ 17, 29, 198, 213.)

19

Based on the information available to Markus and Tyler at the time of the transport, namely the

20

statement of Wright, it was objectively reasonable to take precaution and shackle Mr. Hughey

21

during transport. Thus, the Court does not find Plaintiffs plead adequate facts to sustain a cause

22

of action for excessive force and unlawful seizure based on Mr. Hughey’s blood draw and

23

transport to the hospital.

24
25
26
27
28

Assuming arguendo that Mr. Hughey has pleaded facts adequate to state a claim against
15

The Court’s construal of Plaintiffs’ allegations is made more difficult by Plaintiffs’ opposition, which
alleges facts that are not in the SAC: “Markus concedes having witnessed the muzzle flash from outside the home
without any struggle, and Tyler witnessed an unarmed Mr. Hughey being shot through the rear glass door and
similarly without any altercation.” (ECF No. 52 at 6.) However, in the second amended complaint Plaintiffs allege
that “Markus was coming around the corner of the row of four homes” and saw the muzzle flash. (SAC ¶ 16.)
Plaintiffs further stated that Markus “inquired into what had happened that would cause an unarmed man to be shot
within his home.” (SAC ¶ 16.)

18

1

Markus, Tyler, other WSPD officers, or medical personnel who performed a blood draw, the

2

pleaded facts as a whole are not sufficient to state that these individuals violated Mr. Hughey’s

3

clearly established constitutional rights. Based on the facts above, other WSPD officers who

4

entered the home afterwards to handcuff Mr. Hughey and transport him to the hospital, and

5

medical personnel who drew Mr. Hughey’s blood, would be entitled to qualified immunity.

6

Plaintiffs do not plead facts showing that these officers violated a clearly established

7

constitutional right. Rather, the facts pled show that these individuals were dealing with the

8

aftermath of a shooting which none of them directly saw, and it was objectively reasonable to

9

handcuff Mr. Hughey, draw his blood, and transport him to the hospital.

10
11
12

Therefore, Defendants’ motion to dismiss Claim 14 as to Markus and Tyler is
GRANTED.
E. Claim 15 (Mrs. Hughey): Excessive Use of Force and Unreasonable Seizure by the

13
14
15
16

City and Markus
In summary, the relevant allegations for this claim are that, at some point after the
shooting occurred:


“Markus took Mrs. Hughey into a separate room in the house and did not allow her to

17

leave or [have] access to her toddler son. She was not free to leave until he [sic]

18

responded to her [sic] questioning and she received no Miranda rights during the

19

custodial seizure and interrogation.” (SAC ¶ 202.)

20



“After officers entered the Hughey residence, Mrs. Hughey went upstairs with Officer

21

[Markus] to check on her three-year-old son, who was in bed within his room. After

22

checking on her son, officers separated the child and Mrs. Hughey and told her they

23

needed a statement before Mrs. Hughey could return to her son and before going to the

24

hospital. Mrs. Hughey just started having contractions as a result of the traumatic

25

wrongful shooting. Mrs. Hughey wanted medical attention because of her late-term

26

pregnancy and the trauma she just suffered. Mrs. Hughey felt pressured to provide a

27

statement so she could return to her son and proceed to a medical center.” (SAC ¶ 21.)

28
19

1

“Although detention of witnesses for investigative purposes can be reasonable in certain

2

circumstances, such detentions must be minimally intrusive.” Maxwell v. Cty. of San Diego, 708

3

F.3d 1075, 1083 (9th Cir. 2013). “[T]he state interests justifying investigative witness detentions

4

are lower than those justifying detention of suspected criminals.” Id. at 1084 (referencing Illinois

5

v. Lidster, 540 U.S. 419 (2004)). In deciding whether the detention was reasonable, the court

6

must look to “the gravity of the public concerns served by the seizure, the degree to which the

7

seizure advances the public interest, and the severity of the interference with individual liberty.”

8

Id. at 1083 (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). “[D]etention without suspicion of

9

criminal activity involved a lesser state interest than a detention based on such suspicion.” Id. at

10

1084. “[I]n the hierarchy of state interests justifying detention, the interest in detaining witnesses

11

for information is of relatively low value.” Id. Fourth Amendment reasonableness “is measured

12

in objective terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S.

13

33, 34 (1996); see Littler v. Bay Area Rapid Transit District (BART), No. 14-cv-05072-DMR,

14

2016 WL 1734095, at *7 (N.D. Cal. April 29, 2016) (finding that the witnesses detention was

15

reasonable as it furthered public concern because she was an eye witness to a battery and the

16

detention was short, lasting only five minutes); Emrit v. Sandoval, No. 2:14-cv-01759-APG-NJK,

17

2015 WL 669041, at *3 (D. Nev. Feb. 17, 2015) (finding that an allegation that only states the

18

police detained a witness is not enough for a court to determine reasonableness under the

19

circumstances).

20

Defendants argue that Mrs. Hughey was “detained for questioning as a witness to a

21

shooting and possible domestic violence. Since Mrs. Hughey was the only third-party witness to

22

the shooting, and Wright’s version radically diverged from Mr. Hughey’s her statement was

23

vitally important.” (ECF No. 50–1 at 10.) However, drawing the facts alleged in favor of Mrs.

24

Hughey, she states a claim for an unlawful detention under the Fourth Amendment. Plaintiffs’

25

allege Mrs. Hughey was separated from her toddler son. She was not free to leave. She was told

26

she could not return to her son before giving a statement. She started having contractions because

27
28
20

1

she was at the end of her pregnancy and she wanted medical attention.17
Whether those acts constitute a detention that is more than “minimally intrusive,”

2
3

Maxwell, 708 F.3d at 1083, is a question of fact that is inappropriate to resolve on a motion to

4

dismiss. Likewise, whether Markus’s actions violated a clearly established constitutional right –

5

preventing a pregnant woman from leaving and/or from being with her toddler son – is an issue

6

that may not properly be resolved on a motion to dismiss; there are adequate facts pled that,

7

accepted as true, may counter qualified immunity. Therefore, Defendant’s motion to dismiss

8

Claim 15 is DENIED relative to Defendant Markus, based on an allegation that he unlawfully

9

detained Mrs. Hughey.

10

As to the City, Mrs. Hughey does not identify a custom, policy, or practice that was the

11

moving force behind Markus’ committing an allegedly unlawful detention. Therefore, the motion

12

to dismiss Claim 15 relative to the City is GRANTED.

13

F. Claim 16 (Mr. Hughey): Excessive Use of Force and Unlawful Arrest by the City,

14

Sockman, and Fellows

15

Claim 16 alleges excessive force and unlawful arrest in connection with Mr. Hughey’s

16

formal arrest and processing in the hospital the day after the incident. Defendants argue that a

17

seizure occurred when Mr. Hughey was shot and continued until his arraignment and that the

18

formal arrest in the hospital was part of an ongoing seizure, rather than a separate incident. (ECF

19

No. 50-1 at 12.) Defendants assert that because the formal arrest at the hospital was part of one

20

continuous seizure, Fellows cannot be liable for unlawful arrest. (ECF No. 50-1 at 12.) Plaintiffs

21

counter that “Mr. Hughey was subjected to a variety of violations.” (ECF No. 52 at 12.)

22

However, Plaintiffs fail to address the substance of Defendants argument and do not provide any

23

legal authority demonstrating that the formal arrest in the hospital is sufficient to find Fellows

24

liable for unlawful arrest.
A seizure occurs “whenever [the officer] restrains the individual’s freedom to walk away.”

25
26
27
28

17

In her opposition, Mrs. Hughey also references Markus and Tyler ordering her to the ground at gunpoint, but
the fifteenth cause of action in the SAC refers only to Markus and the City, and specifically to Markus’ questioning
of Mrs. Hughey. (ECF No. 52 at 16.)

21

1

Robins v. Harum, 773 F.2d 1004, 1009 (9th Cir. 1985). “[O]nce a seizure has occurred, it

2

continues throughout the time the arrestee is in the custody of the arresting officer.” Id.; see

3

Fisher v. City of San Jose, 558 F.3d 1069, 1077–78 (9th Cir. 2009) (en banc) (holding a long

4

standoff constituted one seizure which began at the initiation of the standoff and continued until

5

the formal arrest); but see Hopkins v. Bonvicino, 573 F.3d 752, 772 n.12 (9th Cir. 2009)

6

(distinguishing between the initiation of a seizure and formalizing that same seizure and two

7

separate yet overlapping incidents that create distinct seizures for fourth amendment purposes).

8

In Fisher, police were called to an apartment complex after a man threatened a security

9

guard and locked himself inside his apartment with weapons. Fisher, 558 F.3d at 1072–73.

10

Police in that instance initiated contact through yelling to the man in his apartment. Police did

11

not physically seize Fisher or handcuff him until after the standoff was over. The Ninth Circuit

12

held the incident constituted one seizure for 4th amendment purposes because a seizure does not

13

end until a reasonable person would feel at liberty to leave. Id. at 1078. The Ninth Circuit noted

14

that Fisher would not feel at liberty to leave his home without being formally arrested at any point

15

during the standoff. Id. Whereas in Hopkins, police handcuffed and removed a defendant from

16

inside his home, released him, and then a citizen’s arrest occurred moments later in front of the

17

house. Hopkins, 573 F.3d at 761–72.

18

Here, like in Hopkins, Mr. Hughey was first handcuffed and seized within his home, but

19

was not formally arrested or charged until after the initial handcuffing and seizure. However,

20

from the time Mr. Hughey was shot Plaintiffs allege facts to demonstrate that Mr. Hughey would

21

never have felt free to leave. Plaintiffs allege “officers pinned Mr. Hughey to the floor and

22

handcuffed him before he was rushed for emergency, life-saving surgery.” (SAC ¶ 17.) Plaintiffs

23

further allege WSPD denied Mr.Hughey visitors while he was at the hospital the day after the

24

shooting and remained in the room with Mr. Hughey when his lawyer visited. (SAC ¶ 34.) A

25

guard remained outside Mr. Hughey’s hospital room. (SAC ¶ 35–36.) Additionally, Plaintiffs

26

allege WSPD shackled Mr. Hughey to his bed on July 11, 2012. (SAC ¶ 36.) Mr. Hughey

27

alleges he was not formally arrested until the afternoon of July 11, the day after the incident, and

28

at that time he was read his Miranda rights. (SAC ¶ 41.) Plaintiffs further allege Defendants
22

1

removed Mr. Hughey’s shackles on July 13, after his attorney arranged for his bail to post. (SAC

2

¶ 44.) Taking Mr. Hughey’s allegations as true, he has alleged one continuous seizure beginning

3

at his residence and culminating in his formal arrest in the hospital a day after the initial seizure.

4

Therefore, Fellows cannot be liable for the unlawful arrest or seizure that was a continuation of

5

the seizure initiated by Wright. See Hopkins, 573 F.3d at 772 n.12 (allowing two separate causes

6

of action under § 1983 when the circumstances demonstrated two separate seizures under the

7

Fourth Amendment).

8
9

Plaintiffs also bring this claim against Sockman. The Court reads Plaintiffs allegations
against Sockman as arising from Mr. Hughey being shackled to the bed until his attorney posted

10

bail. Plaintiffs allege that “Sockman ordered that the [sic] Mr. Hughey continued to be hand-

11

cuffed to the bed until he was processed.” (SAC ¶ 207.) “Mr. Hughey was released from his bed

12

by Lt. Sockman after Mr. Hughey posted bail at the hearing several days later.” (SAC ¶ 207.)

13

From these allegations, as well as the rest of claim 16, the Court cannot determine what Plaintiffs

14

allege Sockman is liable for: excessive force or unlawful arrest. Insofar as Plaintiffs seek to

15

allege liability against Sockman for unlawful arrest, the claim fails for the same reasons as it fails

16

against Fellows. As to a claim of excessive force, Plaintiffs’ allegations are inadequate. As

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mentioned above18, for a handcuffing to be considered excessive force the plaintiff must allege a

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demonstrable physical injury or unheeded complaints about excessive tightness. Plaintiffs fail to

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make any such statements.

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For the above stated reasons, the Court finds that Plaintiffs have failed to allege adequate

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facts to demonstrate that the formal arrest at the hospital constitutes an unlawful seizure against

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Fellows and that Sockman is liable for either unlawful arrest or excessive force. The Court also

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finds Plaintiffs have not alleged the City has a policy, custom, or practice of unlawful arrests.

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Therefore, Defendants’ motion to dismiss Claim 16 as to Fellows, Sockman and the City is

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GRANTED.

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G. Claim 17: Unreasonable Search of Mr. Hughey’s Person with an Invalid Warrant by

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See supra, section IV, subsection D.

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the City and Fellows
In this cause of action Mr. Hughey contends the search conducted at the hospital was

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unreasonable because the warrant was improperly obtained. (SAC ¶ 212.) Defendants contend

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that the warrant was valid or in the alternative that the search was incident to a lawful arrest. The

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Fourth Amendment “provides that a warrant may not be issued without probable cause.”

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Fernandez v. California, 134 S.Ct. 1126, 1131–32 (2014). Probable cause exists if there is a “fair

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probability that contraband or evidence of a crime will be found in a particular place,” based on a

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totality of the circumstances. United States v. Pinela-Hernandez, 262 F.3d 974, 978 (9th Cir.

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2001) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). “[A]n affidavit may be based on

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hearsay information and need not reflect the direct personal observations of the affiant.” United

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States v. Ventresca, 380 U.S. 102, 108 (1965). For hearsay based on declarants other than the

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affaint, the magistrate judge is tasked with issuing a warrant based on the totality of the

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circumstances including the veracity and basis of knowledge of persons supplying hearsay

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information. Illinois v. Gates, 462 U.S. 213, 238 (1983). The magistrate judge must also be

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informed of the affiant’s belief that any declarant involved is credible or his information reliable.

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Ventresca, 380 U.S. at 108. “Police officers may be presumed reliable.” United State v. Angulo-

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Lopez, 791 F.2d 1394, 1397 (9th Cir. 1986). “To prevail on a claim that the police procured a

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warrant through deception, the party challenging the warrant must show that the affiant

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deliberately or recklessly made false statements or omissions that were material to the finding of

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probable cause.” United States v. Ruiz, 758 F.3d 1144, 1148 (9th Cir. 2014).

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Here, Plaintiffs allege Fellows took Wright’s false statement. (SAC ¶ 18.) Plaintiffs also

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allege on the evening of the shooting Fellows interviewed neighbors who saw and heard Wright

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wrongfully shoot Mr. Hughey. (SAC ¶ 23.) Plaintiffs state the neighbors did not report

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witnessing any struggle between Wright and Mr. Hughey. (SAC ¶ 23.) Plaintiffs offer these few

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allegations in support of the conclusory statement that Fellows knew or had reason to know that

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Wright’s statements were false when he prepared the affidavit to procure the search warrant.

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(SAC ¶ 212.) Plaintiffs’ suggestion is supported by the search warrant the Court granted judicial

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notice of, which demonstrates that Fellows asked for the warrant two days after the incident when
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both Wright’s statement and the neighbors’ statements were allegedly available to him. (ECF No.

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50-2, Ex. B.) Plaintiffs have alleged enough information to call into question the reasonability of

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Fellows reliance on Wright’s testimony and not providing the neighbor’s eye witness accounts.

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Whether or not the warrant was valid rests on whether the magistrate judge’s determination was

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justified by the totality of the circumstances and is a question of fact which cannot be determined

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at this juncture. Therefore, Defendants’ motion to dismiss Claim 17 as to Fellows is DENIED.

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Plaintiffs do not allege facts suggesting that the City has a policy, practice, or custom

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permitting unlawful searches based on invalid warrants. Therefore, Defendants’ motion to

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dismiss Claim 17 as to City is GRANTED.
H. Claim 18: Unreasonable Search of the Hughey’s Home Without a Valid Warrant by

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the City, Sockman and Fellows

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Plaintiffs allege City, Sockman, and Fellows conducted an unlawful search and seizure of
two computers and Mr. Hughey’s cellphone in the Hughey residence. (SAC ¶ 217.)

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i.

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Fellows
Defendants argue Fellows was not the affiant for the warrant nor was he the officer who

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seized the property from the house. (ECF No. 50-1 at 16.) In support of their argument,

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Defendants seek judicial notice of the search warrant under question. (ECF No. 50-2, Ex. A.)

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Search Warrant No. 12-197, granted police the ability to search the computers and phones seized

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from the Hughey residence and an affidavit by Detective Ryan Lukins provided support for the

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search warrant.19 (ECF No. 50-2, Ex. A at 1.) The affidavit in support of the search warrant also

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states the “CSI Pagano located and collected two apple brand laptop computers . . . as well as and

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[sic] a I-Phone.” (ECF No. 50-2, Ex. A at 3.) Plaintiffs argue Defendants unlawfully entered the

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home after the shooting and unlawfully seized the computers and phones. (ECF No. 53 at 15.)

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Plaintiffs further assert the unlawful seizure is the underlying issue in the cause of action not the

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subsequent warrant to search the already seized items. (ECF No. 53 at 15.)
Plaintiffs specifically allege “Fellows unlawfully engaged in the search of the Hughey

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Plaintiffs did not bring any claims against Detective Ryan Lukins in the instant action.

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home without a warrant.” (SAC ¶ 217.) Plaintiffs state “WSPD seized personal property (in the

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form of electronic equipment) inside the home without a warrant.” (SAC ¶ 217.) However, “[a]

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claim has facial plausibility when the pleaded factual content allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

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556 U.S. 662, 678–79 (citing Twombly, 550 U.S. at 556). Here, Plaintiffs have provided adequate

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facts to demonstrate that Defendant Fellows may be liable for the seizure of the computers and

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phone. Defendant’s presentation of the warrant simply makes who seized the items a question of

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fact, which the Court cannot rule on in a motion to dismiss. Therefore, Defendants’ motion to

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dismiss Claim 18 as to Fellows is DENIED.

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ii.

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Sockman
Plaintiffs assert Sockman is liable because he refused to return the personal property when

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the Hughey’s attorney requested it. (SAC ¶ 217.) Plaintiffs also allege Sockman lied about the

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existence of a warrant and refused to produce the warrant. (SAC ¶ 17.) Additionally, Plaintiffs

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allege the WSPD has not returned all of the Hugheys’ electronic equipment despite a court order.

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(SAC ¶ 28.)

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Defendants suggest Sockman cannot be liable for withholding the computers and

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cellphone when he was not the officer who seized the property. (ECF No. 50-1 at 16.)

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Additionally, Defendants assert Sockman cannot be liable for the refusal because at the time Mr.

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Hughey’s attorney requested the return, a warrant had been issued to search the contents of the

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devices. (ECF No. 50-1 at 17.) The Court construes Plaintiffs’ allegations to contend Sockman

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was liable for not returning the computers and the cellphone when requested, but not for the

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initial unlawful seizure.20 However, Plaintiffs do not allege that Sockman had any authority to

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return the property and therefore cannot state a claim against him on this ground. Diaz v. State,

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No. C 94-20113 JW, 1995 WL 590358, at *2 (N.D. Cal., Oct. 3, 1995) (finding the plaintiff did

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not state a claim against the individual who personally did not return the property when requested

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If Plaintiffs seek to allege Sockman is liable for the initial seizure, the claim fails because Plaintiffs do not
allege any facts connecting Sockman to the seizures at the Hughey residence. Plaintiffs do not allege that Sockman
seized the items or that he directed others to seize the computers and cellphone. Therefore insofar as Plaintiffs assert
such a claim, Defendants’ motion to dismiss is GRANTED.

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because the plaintiff did not allege that the individual had the authority to return the property).
Assuming arguendo that Plaintiffs alleged Sockman had the authority to return the

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computers and cellphone, Plaintiffs still do not state a claim. “A negligent or intentional

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deprivation of property fails to state a claim under Section 1983 if the state has an adequate post

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deprivation remedy.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). “California law provides an

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adequate post-deprivation remedy for any property deprivation.” Barnett v. Centoni, 31 F.3d 813,

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816–17 (citing Cal Gov’t code §§ 810–895 as a statute providing remedy for property

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deprivation). As in Smith v. County of Santa Cruz, Plaintiffs’ own allegations in the SAC suggest

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that Plaintiff knew of this post-deprivation remedy. See Smith, No.: 13-CV-00595 LHK, 2014

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WL 3615492, at *8–9 (N.D. Cal. July 22, 2014). “Notwithstanding a court order to return all the

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Hugheys’ electronic equipment, WSPD and the Yolo County District Attorney have failed to do

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so.” (SAC ¶ 28.) Accordingly, Plaintiffs acknowledge the post-deprivation remedy for

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unauthorized seizure of property by a state agent.

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Defendants’ motion to dismiss Claim 18 as to Sockman is GRANTED. Furthermore, the

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claim is dismissed with prejudice because given the post-deprivation remedy amendment would

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be futile.

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iii.

The City

As to the City, Plaintiffs allege WSPD seized the computers and cellphone without a

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warrant or any justification. (SAC ¶ 28.) Plaintiffs further allege “WSPD wrongfully seized he

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[sic] computer and smartphone in an effort to engage in unlawful fishing expedition for some

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form of evidence or anything to use against Mr. and Mrs. Hughey as part of the abuse, corruption

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and conspiracy to protect its own.” (SAC ¶ 28.) The above stated allegations provide fair notice

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to the City to defend itself effectively against a claim of unlawful seizure of the two computers

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and cellphone. Taken as true, the allegations plausibly suggest an entitlement to relief based on

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the initial seizure of the computers and cellphone. However, insofar as Plaintiffs seek to assert

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the City is liable for Sockman’s refusal to return the items, the City would be granted the same

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protection based on the availability of a post-deprivation remedy. Therefore, Defendants’ motion

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to dismiss Claim 18 as to the CITY is DENIED with respect to the initial seizure and GRANTED
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with prejudice with respect to the failure to return the property.

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I. Claim 19: Failure to Train and Supervise the City, Drummond and Sockman
i.

The City
Defendants assert that Plaintiffs do not allege facts sufficient to demonstrate a policy or

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custom that the City fails to train officers. Defendants point to their arguments in support of

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dismissing Claim 11 for this proposition. (ECF No. 50–1 at 17.) In support of their allegations,

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Plaintiffs provide a laundry list of other incidents of excessive force and constitutional violations.

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(ECF No. 52 at 17–23.)

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“Courts have found that ‘in some circumstances a policy of inaction, such as of failing to

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properly train employees, may form the basis for municipal liability.’” Johnson v. City of Vallejo,

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99 F. Supp. 3d 1212, 1218 (E.D. Cal. 2009) (citing Hunter v. County of Sacramento, 652 F.3d

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1225, 1234 n.8 (9th Cir. 2011)). Municipal liability for failure to train may only be found where

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the policy of inaction amounts to deliberate indifference to the rights of the persons with whom

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the officers come in contact. Hunter, 652 F.3d at 1234 n.8. The Supreme Court has defined

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deliberate indifference “as a stringent standard of fault, requiring proof that a municipal actor

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disregarded a known or obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51,

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61 (2011). “The City’s ‘policy of inaction’ in light of notice that its program will cause

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constitutional violations ‘is the functional equivalent of a decision by the city itself to violate the

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constitution.’” Id. at 61–62 (citing Board of Comm’rs of Bryan County v. Brown, 520 U.S. 397,

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410 (1997)). “A pattern of similar constitutional violations by untrained employees is “ordinarily

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necessary” to demonstrate deliberate indifference for the purposes of failure to train.” Id. at 62

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(internal quotes omitted).

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As discussed above in Claim 11, Plaintiffs effectively allege the City has a policy or

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custom of excessive force amongst its officers. For Plaintiffs’ allegations to amount to a claim of

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failure to train, Plaintiffs must have alleged a pattern of constitutional violations. In this respect

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Plaintiffs state or cite specific instances of excessive force claims against police in the SAC.

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(SAC ¶¶ 104–113.) Based upon these facts, Plaintiffs adequately present a pattern of

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constitutional violations that is sufficient to allege deliberate indifference on the part of the City
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for failure to train WSPD officers. Defendants’ motion to dismiss Claim 19 as to the City is

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DENIED.

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ii.

Sockman and Drummond
Defendants argue that Plaintiffs allege generic supervisor liability claims against Sockman

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and Drummand and fail to present facts which meet the elements of a claim for supervisor

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liability. (ECF No. 50–1 at 17.) Plaintiffs contend they allege facts demonstrating Sockman and

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Drummond ratified Wright’s conduct by finding a wrongful shooting occurred only after “they

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became aware of their inability to cover up [Wright’s] misconduct.” (ECF No. 52 at 22.)

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Supervisor liability requires a showing of personal involvement in the constitutional

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violation or a sufficient causal connection between the supervisor’s conduct and the alleged

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constitutional violation. Lemire v. California Dept. of Corrections and Rehabilitation, 726 F.3d

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1062, 1056–57 (9th Cir. 2013). The causal connection may be established from: “1) [the

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supervisor’s] own culpable action or inaction in the training, supervision, or control of

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subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is

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made; or 3) for conduct that showed a reckless or callous indifference to the rights of others.”

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Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000).

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With respect to Drummond, the complaint merely states because of his position as Police

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Chief at the time of the incident, he had knowledge of the shooting. (SAC ¶ 97; ¶ 147 “on

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information and belief, Chief Drummond was also informed of the falsity of Officer Wright’s

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statement and failed to authorize the release of Mr. Hughey.”; ¶ 166 “Plaintiff’s constitutional

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rights as set forth herein occurred as a result of the widespread and settled custom, usage, practice

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and/or policy… and their inadequate implementation by Defendants Dan Drummond and Tod

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Sockman.”) Plaintiffs do not allege any act or failure to act on the part of Drummond that would

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demonstrate a causal link between Drummond and the acts of WSPD officers that are the basis

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for the underlying constitutional violation allegations.

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As to Sockman, the complaint alleges more facts against Sockman as he was a direct

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participant in the investigation following the shooting. (SAC ¶ 38 “Lt. Sockman falsely and

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intentionally stated that a warrant was obtained”; ¶ 42 “Lt. Sockman was once again on notice
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that there existed an entirely different version of events and he should investigate the conduct and

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statement from Officer Wright”; ¶ 96 “Lt. Sockman was also responsible for supervising

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personnel officers underneath Tyler which included Wright and Markus.”) However, these facts

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relate to Sockman’s participation after the shooting and do not demonstrate a causal connection

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between the shooting and actions or inactions by Sockman that would state a claim for relief. As

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such, Defendants’ motion to dismiss Claim 19 as to Drummond and Sockman is GRANTED.

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V.

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For the foregoing reasons, the Court orders as follows:

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1. Defendants’ Motion to Dismiss Claim 11 is DENIED;

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CONCLUSION

2. Defendants’ Motion to Dismiss Claim 12 is DENIED as to Sockman and Fellows and
GRANTED WITH LEAVE TO AMEND as to Markus and Tyler;

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3. Defendants’ Motion to Dismiss Claim 13 is DENIED;

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4. Defendants’ Motion to Dismiss Claim 14 is GRANTED WITH LEAVE TO AMEND

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as to the City, Markus and Tyler;
5. Defendants’ Motion to Dismiss Claim 15 is DENIED as to Markus and GRANTED
WITH LEAVE TO AMEND as to the City;
6. Defendants’ Motion to Dismiss Claim 16 is GRANTED WITH LEAVE TO AMEND
as to the City, Fellows, and Sockman;
7. Defendants’ Motion to Dismiss Claim 17 is GRANTED WITH LEAVE TO AMEND
as to the City and DENIED as to Fellows;
8. Defendants’ Motion to Dismiss Claim 18 is GRANTED WITHOUT LEAVE TO
AMEND as to Sockman and DENIED as to the City and Fellows; and
9. Defendants’ Motion to Dismiss Claim 19 is DENIED as to the City and GRANTED
WITH LEAVE TO AMEND as to Sockman and Drummond.
Plaintiffs are granted thirty (30) days from the date of this Order to file a Third Amended
Complaint. Plaintiffs are not permitted leave to amend beyond the confines of this order.
IT IS SO ORDERED.

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Dated: February 13, 2017

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Troy L. Nunley
United States District Judge

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