Hicks v. City of Vallejo et al

Filing 14

ORDER signed by Magistrate Judge Dale A. Drozd on 8/13/14 ORDERING that Defendants' 6/16/14 AMENDED MOTION to Dismiss 9 is GRANTED; Plaintiff is granted twenty-eight days from the date of this order to file a second amended complaint. Plaintiff is cautioned that the failure to timely file a second amended complaint may result in a recommendation that this action be dismissed for failure to comply with the courts order and for failure to prosecute this action. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TYRONE EDWARD HICKS,

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Plaintiff,

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No. 2:14-cv-0669 LKK DAD PS

v.

ORDER

CITY OF VALLEJO, et al.,

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Defendants.

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Plaintiff, Tyrone Edward Hicks, is proceeding in this action pro se. This matter was,

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therefore, referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. §

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636(b)(1). On August 8, 2014, the parties appeared before the court for hearing of defendants’

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motion to dismiss plaintiff’s first amended complaint. Attorney Kelly Trujillo appeared

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telephonically on behalf of the defendants. Plaintiff Tyrone Hicks appeared in person on his own

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behalf.

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Defendants’ motion asserts that plaintiff’s claim for punitive damages against the City of

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Vallejo, as well as any state law claims brought by plaintiff against any defendant, must be

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dismissed as a matter of law. (Dkt. No. 9.) In his opposition, filed on July 7, 2014, plaintiff did

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not address defendants’ arguments, but instead argued merely that he had a right to file a

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“complaint for federal claims in federal court.” (Dkt. No. 12 at 2.) At the August 8, 2014 hearing

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on defendant’s motion to dismiss plaintiff stated no opposition to the dismissal of his claim for
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punitive damages against the City of Vallejo or to the dismissal of any state law causes of action

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for unlawful prosecution. Plaintiff, however, requested leave to file a second amended complaint

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to attempt to state a federal constitutional claim based upon the alleged unlawful towing of his

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vehicle.1
Defendants’ motion to dismiss will be granted with plaintiff being granted leave to file a

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second amend complaint with respect to his federal claims for false arrest, excessive use of force

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and the unlawful towing of his vehicle. All of the claims which plaintiff wishes to proceed upon

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must be alleged in his second amended complaint. Although not raised in the parties’ papers or at

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the August 8, 2014 hearing, plaintiff will also be granted leave to amend with respect to his

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Monell claim. The court notes that plaintiff explicitly asserted in his first amended complaint that

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he would “be seeking damages for ‘Monell claims’ against the City of Vallejo for their

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longstanding, practice, policy or custom of allowing Vallejo Police Officers to use excessive

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force.” (Am. Compl. (Dkt. No. 4) at 5.)

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With respect to his specific claims, plaintiff is advised that to state a claim under 42

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U.S.C. ' 1983 for violation of the Fourth Amendment based upon the alleged excessive use of

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force, a complaint must allege that the amount of force used by a police officer was not

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objectively reasonable in light of the totality of the circumstances facing the officer, taking into

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account a range of factors to assess the amount of force used and the governmental interests at

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stake. See Graham v. Conner, 490 U.S. 386, 396 (1989); Moss v. U.S. Secret Service, 711 F.3d

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941, 966 (9th Cir. 2013). “[T]he most important single element” of the Graham framework is

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“whether the suspect poses an immediate threat to the safety of the officers or others.” Moss, 711

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F.3d at 966 (quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)).

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To state a cognizable federal claim for unlawful seizure based upon a false arrest a

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complaint must allege facts showing that the defendant “by means of physical force or show of

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authority . . . in some way restrained the liberty of” the identified plaintiff. Graham, 490 U.S. at

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395, n. 10 (citing Terry v. Ohio, 392 U.S. 1, 19, n. 16 (1968) and Brower v. County of lnyo, 489

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Defendants did not move to dismiss plaintiff’s constitutional claims based upon his allegations
of false arrest and the excessive use of force against him.
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U.S. 593, 596 (1989)). “A claim for unlawful arrest is cognizable under § 1983 as a violation of

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the Fourth Amendment, provided the arrest was without probable cause or other justification.”

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Dubner v. City and County of San Francisco, 266 F.3d 959, 964-65 (9th Cir. 2001).

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With respect to any municipal liability claim he seeks to bring, plaintiff is advised that a

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municipality may be liable under § 1983 where the municipality itself causes the constitutional

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violation through a “policy or custom, whether made by its lawmakers or those whose edicts or

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acts may fairly be said to represent official policy,” pursuant to the decision in Monell v.

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Department of Social Services, 436 U.S. 658, 6994 (1978). Municipal liability in a § 1983 case

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may be premised upon: (1) an official policy; (2) a “longstanding practice or custom which

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constitutes the standard operating procedure of the local government entity;” (3) the act of an

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“official whose acts fairly represent official policy such that the challenged action constituted

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official policy;” or (4) where “an official with final policy-making authority delegated that

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authority to, or ratified the decision of, a subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir.

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2008).

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The Ninth Circuit has “long recognized that a custom or practice can be ‘inferred from

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widespread practices or evidence of repeated constitutional violations for which the errant

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municipal officers were not discharged or reprimanded.’” Hunter v. County of Sacramento, 652

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F.3d 1225, 1233-34 (9th Cir. 2011) (quoting Nadell v. Las Vegas Metro. Police Dep’t, 268 F.3d

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924, 929 (9th Cir. 2001)). See also Hunter v. County of Sacramento, No. 2:06-cv-0457 GEB

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EFB, 2013 WL 3968663, at *4 (E.D. Cal. July 31, 2013) (“Likewise, a county custom or practice

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may be inferred from evidence of repeated, but unreprimanded, constitutional violations.”). Such

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a so-called Monell claim, however, must “contain sufficient allegations of underlying facts to

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give fair notice” and those factual allegations “taken as true must plausibly suggest an entitlement

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to relief . . . .” AE ex rel Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)

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

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Finally, with respect to any constitutional claim plaintiff wishes to bring based upon the

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alleged unlawful towing of his vehicle, plaintiff is advised that “[t]he impoundment of an

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automobile is a seizure within the meaning of the Fourth Amendment.” Miranda v. City of
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Cornelius, 429 F.3d 858, 862 (9th Cir. 2005). However, the Fourth Amendment allows for the

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impoundment of a vehicle “under the community caretaking doctrine if the driver’s violation of a

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vehicle regulation prevents the driver from lawfully operating the vehicle, and also if it is

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necessary to remove the vehicle from an exposed or public location.” Id. at 865. “‘Whether an

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impoundment is warranted under this community caretaking doctrine depends on the location of

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the vehicle and the police officers’ duty to prevent it from creating a hazard to other drivers or

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being a target for vandalism or theft.’” Ramirez v. City of Buena Park, 560 F.3d 1012, 1025 (9th

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Cir. 2009) (quoting Miranda, 429 F.3d at 864). See also South Dakota v. Opperman, 428 U.S.

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364, 369 (1976) (“The authority of police to seize and remove from the streets vehicles impeding

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traffic or threatening public safety and convenience is beyond challenge.”); United States v.

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Cervantes, 703 F.3d 1135, 1142 (9th Cir. 2012) (community caretaking exception did not justify

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impoundment of vehicle that had been “appropriately pulled to the curb” in a residential

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neighborhood); Mateos-Sandoval v. County of Sonoma, 924 F. Supp.2d 890, 910 (N.D. Cal.

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2013) (rejecting community caretaking argument on motion to dismiss where complaint alleged

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vehicle was stopped in a safe, legal location and not blocking traffic).

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With respect to the general requirements of his second amended complaint, plaintiff is

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advised that although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a

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complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that

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state the elements of each claim plainly and succinctly. FED. R. CIV. P. 8(a)(2); Jones v.

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Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels

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and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor

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does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual

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enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,

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557. A plaintiff must allege with at least some degree of particularity overt acts which the

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defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.

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Plaintiff is cautioned, however, that “the tenet that a court must accept as true all of the

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allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of

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the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the complaint’s framework, they

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must be supported by factual allegations.” Id. at 679. Those facts must be sufficient to push the

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claims “across the line from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S.

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at 557).

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In the second amended complaint plaintiff must allege facts demonstrating how the

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conditions complained of resulted in a deprivation of his federal constitutional or statutory rights.

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See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Moreover, plaintiff must allege in specific

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terms how each named defendant was involved in the deprivation of his rights. There can be no

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liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v.

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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

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1978). Vague and conclusory allegations of official participation in civil rights violations are not

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sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an

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amended complaint complete. Local Rule 220 requires that any amended complaint be complete

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in itself without reference to prior pleadings. The second amended complaint will supersede the

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first amended complaint just as the first amended complaint superseded the original complaint.

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See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in the second amended complaint, just

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as if it were the initial complaint filed in the case, each defendant must be listed in the caption and

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identified in the body of the complaint, and each claim and the involvement of each defendant

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must be sufficiently alleged. The second amended complaint must also include concise but

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complete factual allegations describing the conduct and events which underlie plaintiff’s claims.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ June 16, 2014 amended motion to dismiss (Dkt. No. 9) is granted.

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2. Plaintiff is granted twenty-eight days from the date of this order to file a second

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amended complaint as discussed above.

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3. If any defendant named in the first amended complaint is named as a defendant

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in the second amended complaint filed by plaintiff, that defendant shall respond to the pleading

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within twenty-one days after it is filed and served.

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4. Plaintiff is cautioned that the failure to timely file a second amended complaint

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may result in a recommendation that this action be dismissed for failure to comply with the

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court’s order and for failure to prosecute this action.

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Dated: August 13, 2014

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DAD:6
Ddad1\orders.pro se\hicks0669.oah.080814.ord.docx

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