Adam et al v. Brzyscz et al

Filing 21

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 4/22/2015 re 5 City of Sacramento's Motion to Dismiss ; 7 County of Placer's Motion to Dismiss; and 8 County of Sacramento's Motion to Dismiss: IT IS ORDERED tha t: 1) The motions of the County of Placer, the County of Sacramento, and the City of Sacramento to dismiss the third claim of the Complaint be, and the same hereby are, GRANTED with respect to plaintiffs' claim for municipal liability based on searches and seizures without probable cause; and DENIED with respect to plaintiffs' claim for municipal liability based on the use of excessive force; 2) Plaintiffs' request for leave to withdraw claims six and seven with prejudice as agai nst the County of Placer, the County of Sacramento, and the City of Sacramento be, and the same hereby is, GRANTED; and 3) The County of Placer's request to stay these proceedings be, and the same hereby is, DENIED without prejudice. Plaintiffs need not file an amended complaint, but should they choose to do so, plaintiffs have twenty days from the date this Order is signed to file an amended complaint that is consistent with this Order. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SARA ADAM, et al.,
Plaintiffs,

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CIV. NO. 2:14-02795 WBS DAD
MEMORANDUM AND ORDER

v.
BRET BRZYSCZ, CITY OF
ROSEVILLE, COUNTY OF PLACER,
CITY OF SACRAMENTO, COUNTY OF
SACRAMENTO, and DOES 1
THROUGH 50,
Defendants.

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Twenty-six individual plaintiffs brought this action

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against defendants Bret Brzyscz, the City of Roseville, the

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County of Placer (“Placer County”), the County of Sacramento

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(“Sacramento County”), and the City of Sacramento pursuant to 42

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U.S.C. § 1983 for violations of the Fourth Amendment and related

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state law claims.

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defendants Placer County, Sacramento County, and the City of

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Sacramento to dismiss pursuant to Federal Rule of Civil Procedure

Presently before the court are the motions of

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12(b)(6).

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I.

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(Docket Nos. 5, 7, 8.)

Factual and Procedural Background
The allegedly unlawful actions that plaintiffs

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challenge in this case resulted from their relation to plaintiff

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Samuel Duran.

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25, 2013, police officers pursued Samuel Duran to the home of

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plaintiff Donna Sandoval in Roseville, California.

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There, Samuel Duran was struck by gunfire, allegedly while he was

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attempting to surrender.

(See Compl. ¶¶ 51-52 (Docket No. 1).)

(Id. ¶ 66.)

On October

(Id. ¶ 65.)

Sometime later, plaintiff

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Mikkayla Gutierrez allegedly posted a video recording that

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depicted the shooting on the internet.

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(See id. ¶¶ 162, 188.)

Approximately one month later, around 7:00 a.m. on

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November 20, 2013, Roseville Police Officer Bret Brzyscz, along

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with other unidentified officers, simultaneously executed search

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warrants at five different residences owned or occupied by one or

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more plaintiffs.

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officers used excessive force against them during the searches,

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inflicting various injuries to person and property as well as

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causing emotional distress.

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allege the raids were conducted in retaliation for Mikkayla

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Gutierrez’s video post, and the fact that officers seized various

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electronic devises during the raids shows an attempt to cover up

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any other photographs or video recordings plaintiffs may have

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made depicting Samuel Duran’s shooting on October 25, 2013.

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id. ¶¶ 51-52, 162, 184, 188.)

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(See id. ¶¶ 75-189.)

Plaintiffs allege the

(See id. ¶¶ 56, 58.)

Plaintiffs

(See

Plaintiffs further allege that the warrants authorizing

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these searches and seizures were issued based on a finding of

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probable cause supported by material misstatements or omissions
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made by two officers on November 14, 2013.

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that Officer Brzyscz and Officer Ken Nakamura1 either

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intentionally lied or made these misstatements with reckless

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disregard for the truth.

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these misstatements, plaintiffs allege there was not probable

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cause to support the searches and seizures.

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Plaintiffs allege

(See id. ¶¶ 42-44, 46-48.)

Without

(Id. ¶¶ 45, 48.)

The only claims brought against these moving defendants

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are the third, sixth and seventh claims of the Complaint.

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Plaintiffs’ third claim for relief under § 1983 alleges that

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defendants had “policies, procedures, customs, and practices”

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that permitted or encouraged unreasonable searches and seizures

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in violation of the Fourth Amendment.

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Plaintiffs’ sixth and seventh claims assert claims under state

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law for intentional infliction of emotional distress and

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negligence against the municipal defendants.2

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(Id. ¶¶ 220-30.)

Placer County, Sacramento County, and the City of

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Sacramento each move separately to dismiss all plaintiffs’ claims

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against them for failure to state a claim upon which relief can

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be granted pursuant to Rule 12(b)(6).

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initially moved only to dismiss plaintiffs’ sixth and seventh

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claims, but at oral argument on April 20, 2014, the City of

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Sacramento joined in moving to dismiss plaintiffs’ third claim as

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well.

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The City of Sacramento

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Plaintiffs have not named Officer Nakamura as a
defendant in this action.
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Plaintiffs assert claims for assault and battery but
only against Officer Brzyscz, not against the municipal
defendants. (Compl. ¶¶ 231-39.)
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II.

Discussion

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On a motion to dismiss for failure to state a claim

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under Rule 12(b)(6), the court must accept the allegations in the

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complaint as true and draw all reasonable inferences in favor of

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the plaintiffs.

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overruled on other grounds by Davis v. Scherer, 468 U.S. 183

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(1984); Cruz v. Beto, 405 U.S. 319, 322 (1972).

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motion to dismiss, a plaintiff must plead “only enough facts to

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state a claim to relief that is plausible on its face.”

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See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

To survive a

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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The plausibility standard “does not require detailed

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factual allegations.”

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(2009).

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pleading stage.”

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2011).

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reasonable expectation that discovery will reveal evidence’ to

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support the allegations.”

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at 556).

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plausible claim for relief will . . . be a context-specific task

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that requires the reviewing court to draw on its judicial

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experience and common sense.”

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

Nor does it “impose a probability requirement at the
Starr v. Baca, 652 F.3d 1202, 1213 (9th Cir.

This standard “‘simply calls for enough facts to raise a

Id. at 1217 (quoting Twombly, 550 U.S.

Ultimately, “[d]etermining whether a complaint states a

Iqbal, 556 U.S. at 679.

A. Monell Liability

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A municipality can be held liable under § 1983 only

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“when execution of a government’s policy or custom, whether made

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by its lawmakers or by those whose edicts or acts may fairly be

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said to represent official policy, inflicts the injury.”

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v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 693

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(1978).

Monell

Before Iqbal, the Ninth Circuit required plaintiffs
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facing a motion to dismiss in civil rights actions against local

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governments to “set forth no more than a bare allegation that

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government officials’ conduct conformed to some unidentified

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government policy or custom.”

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Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (citing Shah v. Cnty.

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of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)).

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the Ninth Circuit has held that “to be entitled to the

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presumption of truth, allegations in a complaint or counterclaim

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may not simply recite the elements of a cause of action, but must

AE ex rel. Hernandez v. Cnty. of

Since Iqbal,

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contain sufficient allegations of underlying facts to give fair

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notice and to enable the opposing party to defend itself

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effectively.”

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“plausibly suggest an entitlement to relief, such that it is not

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unfair to require the opposing party to be subjected to the

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expense of discovery and continued litigation.”

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Id.

These factual allegations must also

Id.

1. Deprivation of a Constitutional Right

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To establish municipal liability, a plaintiff must show

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“that [the plaintiff] possessed a constitutional right of which

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[he or she] was deprived.”

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Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (quoting

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and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir.

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1992)); see also City of Los Angeles v. Heller, 475 U.S. 796, 799

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(1986) (holding there was no basis for liability against a

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municipality when the plaintiff had suffered no constitutional

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injury).

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requires courts “to separate two different issues when a § 1983

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claim is asserted against a municipality: (1) whether plaintiff’s

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harm was caused by a constitutional violation, and (2) if so,

Plumeau v. Sch. Dist. No. 40 Cnty. of
Oviatt By

The Supreme Court has held that “proper analysis”

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whether the [municipality] is responsible for that violation.”

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Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120

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(1992).

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Here, plaintiffs allege that defendants deprived them

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of their constitutional rights to protection from searches and

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seizures without probable cause and from the use of excessive

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force.

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(See Compl. ¶¶ 201-19, 221-22.)
a. Searches and Seizures Without Probable Cause

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The Fourth Amendment to the United States Constitution,

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applicable to the states through the Fourteenth Amendment,

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prohibits searches and arrests without probable cause.

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Ohio, 379 U.S. 89, 90-91 (1964); McKenzie v. Lamb, 738 F.2d 1005,

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1007-08 (9th Cir. 1984).

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probable cause protects ‘citizens from rash and unreasonable

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interferences with privacy and from unfounded charges of crime.’”

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Maryland v. Pringle, 540 U.S. 366, 370 (2003) (quoting Brinegar

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v. United States, 338 U.S. 160, 176 (1949)).

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Beck v.

“The long-prevailing standard of

Plaintiffs allege that Officer Brzyscz and Officer

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Nakamura submitted supporting affidavits that contained material

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misstatements or omissions, without which there was no probable

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cause to support the five searches.

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48.)

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substantial showing of deliberate falsehood or reckless disregard

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for the truth, and (2) establish that but for the dishonesty, the

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challenged action would not have occurred.”

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F.3d 1014, 1024 (9th Cir. 2002) (internal quotation marks

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omitted); see also Ewing v. City of Stockton, 588 F.3d 1218, 1224

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(9th Cir. 2009) (citing KRL v. Moore, 384 F.3d 1105, 1117 (9th

(See Compl. ¶¶ 42-44, 46-

To prevail on this theory, plaintiffs “must make (1) a

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Butler v. Elle, 281

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Cir. 2004)).

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deception, the court must determine the materiality of the

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allegedly false statements or omissions.”

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1224; see also Butler, 281 F.3d at 1024 (“Materiality is for the

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court, state of mind is for the jury.”).

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officer submitted false statements, the court purges those

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statements and determines whether what is left justifies issuance

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of the warrant.”

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omitted facts required to prevent technically true statements in

“If a party makes a substantial showing of

Ewing 588 F.3d at

Ewing 588 F.3d at 1224.

That is, “[i]f an

“If the officer

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the affidavit from being misleading, the court determines whether

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the affidavit, once corrected and supplemented, establishes

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probable cause.”

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Id.

In a conclusory fashion, plaintiffs allege only that

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they “are informed and believe that the affidavit in support of

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the search warrant contained material misstatements and

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omissions; and upon exclusion of said statements, the affidavit

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fails . . . to establish probable cause . . . .”

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46.)

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they believe were material to a determination of probable cause.

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(Compl. ¶¶ 43,

Plaintiffs fail to identify the misstatements or omissions

This allegation fails to give the court any sense of

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whether the alleged misstatements or omissions were material and

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thus whether plaintiffs plausibly suffered the deprivation of a

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constitutional right.

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Accordingly, because plaintiffs have insufficiently supported a

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deprivation of their Fourth Amendment right to be free from

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searches and seizures without probable cause, plaintiffs have

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also not stated a Monell claim based on this alleged injury.

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Heller, 475 U.S. at 799.

See Twombly, 550 U.S. at 570.

See

The court will therefore grant Placer
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County, Sacramento County, and the City of Sacramento’s motions

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to dismiss plaintiffs’ third claim based on the theory of the

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lack of probable cause for the warrants.

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b. Excessive Use of Force

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Under the Fourth Amendment, police may use only such

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force during a seizure as is objectively reasonable under the

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circumstances.

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(1989).

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courts should typically consider in an excessive force analysis:

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“(1) the severity of the crime at issue; (2) whether the suspect

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poses an immediate threat to the safety of the officers or

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others; and (3) whether the suspect is actively resisting arrest

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or attempting to evade arrest by flight.”

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F.3d 1012, 1021 (9th Cir. 2013) (citing Graham, 490 U.S. at 396).

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In addition to these factors, “a court (or jury) may ‘look to

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whatever specific factors may be appropriate in a particular

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case.’”

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(9th Cir. 1994)).

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See Graham v. Connor, 490 U.S. 386, 396–97

In Graham, the Supreme Court articulated factors that

Cameron v. Craig, 713

Id. (quoting Franklin v. Foxworth, 31 F.3d 873, 875–76

Plaintiffs allege that, during the five searches and
seizures conducted simultaneously on November 20, 2013, officers3
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Plaintiffs’ Complaint is not the model of clarity when
identifying what officers took what actions. It consistently
uses the phrase “officers, including but not limited to,
Defendants Officer Brzyscz, Roseville Officers and Sacramento
Officers.” (See Compl. ¶¶ 75, 100, 104, 133, 160.) During oral
argument on April 20, 2014, plaintiffs clarified their intent to
include unidentified officers from each of the defendant
municipalities as being present at each of the five searches.
Such an allegation may support liability for each municipality
based on a theory of integral participation. See Bravo v. City
of Santa Maria, 665 F.3d 1076, 1089-90 (9th Cir. 2011) (“Section
1983 liability extends to those who perform functions ‘integral’
to an unlawful search, even if their individual actions do not
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used excessive force and executed the searches and arrests “in a

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violent, abusive and unreasonable manner” that “intentionally

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humiliated and embarrassed plaintiffs.”

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example, plaintiffs allege that, during one of the raids,

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officers grabbed plaintiff Antonio Duran, threw him face down to

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the ground, and jammed a knee into his back.

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During another raid, the Complaint alleges that officers

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violently threw plaintiff Anita Felix to the ground and later

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bent plaintiff Alexis Sandoval’s arm behind her back, causing her

For

(Id. ¶ 119.)

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pain.

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threw plaintiffs Juan Sanchez, Danny Garcia, and Destiny C. to

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the ground.

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consistently alleges that none of the plaintiffs were armed or

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attempted to threaten the officers, resist, or flee.

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61, 83, 110, 119, 138, 146, 148, 166-67, 171, 177.)

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(Id. ¶¶ 145, 154.)

(Compl. ¶¶ 56, 81.)

At a third raid, officers allegedly

(Id. ¶¶ 166-67, 171, 177.)

The Complaint also

(See id. ¶¶

During all five raids, officers also allegedly pointed

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firearms at plaintiffs, (see id. ¶¶ 62, 85, 87-88, 110-11, 127,

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138, 143, 148, 166-69); destroyed or damaged property including

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furniture and various doors and locks, (see id. ¶¶ 106, 115, 136,

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163); and forced plaintiffs to stand outside in the cold for up

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to four hours while officers conducted the searches, (see id. ¶¶

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89-90, 112).

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underlying facts at this stage to plausibly support a deprivation

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of the Fourth Amendment’s protection against the use of excessive

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themselves rise to the level of a constitutional violation.”);
see also James by James v. Sadler, 909 F.2d 834, 837 (5th Cir.
1990) (holding that, while officers did not physically perform
the pat-down of plaintiff, because they provided back-up by
remaining armed on the premises throughout the search their
activities rendered them integral participants).
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Accordingly, plaintiffs have alleged sufficient

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force.

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2. Existence of a Policy or Custom

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“For purposes of liability under Monell, a ‘policy’ is

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‘a deliberate choice to follow a course of action . . . made from

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among various alternatives by the official or officials

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responsible for establishing final policy with respect to the

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subject matter in question.’”

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834 (9th Cir. 2008) (quoting Fairley v. Luman, 281 F.3d 913, 918

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(9th Cir. 2002)).

Fogel v. Collins, 531 F.3d 824,

Alternatively, “[a]n act performed pursuant to

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a ‘custom’ that has not been formally approved by an appropriate

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decision-maker may fairly subject a municipality to liability on

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the theory that the relevant practice is so widespread as to have

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the force of law.”

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404 (1997) (citing Monell, 436 U.S. at 690–91).

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Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397,

Plaintiffs allege municipal defendants had in place

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“policies, procedures, customs, and practices” that permitted or

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encouraged the use of excessive force during the raids.

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¶ 222.)

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factual support, plaintiffs’ Complaint does contain underlying

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facts that might support the existence of a custom for purposes

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of Monell.

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allegedly used against multiple individuals located at five

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separate residences that were not in close proximity to one

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another and that these raids were conducted at the same time by

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different officers raises an inference that officers were acting

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pursuant to an established custom of behavior.

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U.S. at 404; Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir.

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1992) (“A section 1983 plaintiff may attempt to prove the

(Compl.

Although the allegation of an official policy lacks

Specifically, the fact that excessive force was

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See Brown, 520

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existence of a custom or informal policy with evidence of

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repeated constitutional violations.”).

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municipal defendants “fair notice” of the custom that plaintiffs

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challenge and, assuming these allegations as true, it plausibly

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states a claim for relief under Monell.

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at 637.

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Sacramento County, and the City of Sacramento’s motions to

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dismiss plaintiffs’ third claim as it relates to a custom

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encouraging the use of excessive force.

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The Complaint thus gives

See Hernandez, 666 F.3d

Accordingly, the court will deny Placer County,

B. Plaintiffs’ Sixth and Seventh Claims under State Law

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Plaintiffs’ sixth and seventh claims assert liability

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under state law for intentional infliction of emotional distress

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and negligence against all defendants.

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a prerequisite to asserting state law claims against a public

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entity or public employee, however, California’s Tort Claims Act

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(“TCA”), Cal. Gov’t Code §§ 810-978.8, requires a plaintiff to

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first present to the public entity “all claims for money or

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damages” against the local public entity or public employee.

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§ 905.

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to a public entity bars a plaintiff from filing a lawsuit against

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that entity.”

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(2004).

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or excusing compliance with the claim presentation requirement”

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in the complaint.

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(Compl. ¶¶ 240-251.)

As

Id.

“[F]ailure to timely present a claim for money or damages

California v. Super. Ct., 32 Cal. 4th 1234, 1239

A plaintiff must therefore “allege facts demonstrating

Id. at 1242.

Plaintiffs allege that they complied with the

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California Tort Claims Act by sending a notice of intent to file

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suit to the City of Roseville on April 22, 2014, which denied

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their claims on May 29, 2014.

(Compl. ¶ 5.)
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Plaintiffs fail to

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make a similar allegation regarding Placer County, Sacramento

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County, or the City of Sacramento.

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in their opposition briefs to withdraw their sixth and seventh

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claims under state law against Sacramento County and the City of

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Sacramento.

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13); Pls.’ Opp’n to Sacramento County at 12 (Docket No. 14).)

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oral argument on April 20, 2014, plaintiffs also requested leave

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to withdraw claims six and seven as against Placer County.

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Plaintiffs further clarified that they wish to withdraw the state

Plaintiffs thus request leave

(See Pls.’ Opp’n to Sacramento City at 2 (Docket No.

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law claims against these defendants with prejudice.

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the court will grant plaintiffs leave to withdraw, with

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prejudice, claims six and seven as against Placer County,

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Sacramento County, and the City of Sacramento.

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At

III. Placer County’s Request to Stay Proceedings

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Accordingly,

Placer County also asks the court to abstain from

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hearing claims against it because there are ongoing criminal

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proceedings against plaintiffs Samuel Duran and Antonio Duran.

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(See Placer County’s Mem. at 6.)

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reliance upon Younger v. Harris, 401 U.S. 37, 41 (1971)

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(abstaining from a case that might enjoin prosecution under a

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California criminal statute), the court will construe this

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request as invoking the Younger doctrine.

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Albright, 381 F.3d 965, 984 (9th Cir. 2004) (extending Younger to

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relief for damages, including “an action for damages pursuant to

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42 U.S.C. § 1983”).

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Although the county disavows

See Gilbertson v.

Under Ninth Circuit precedent, “abstention in favor of

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state judicial proceedings is required if the state proceedings

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(1) are ongoing, (2) implicate important state interests, and (3)
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provide the plaintiff an adequate opportunity to litigate federal

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claims.”

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F.3d 708, 712 (9th Cir. 1995) (citing Middlesex Cnty. Ethics

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Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)).

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Placer County has not shown why this court should apply Younger

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abstention here, and it has failed to identify or describe the

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nature of the criminal proceedings pending against Samuel Duran

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and Antonio Duran.

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Hirsh v. Justices of Supreme Ct. of State of Cal., 67

Placer County states only that allegations relating to

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actions in the Placer County Jail “could become an issue

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depending on the scope of discovery permitted in the civil

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action” and “may ultimately relate to claims of improper searches

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in jail that might impact the criminal prosecution.”

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County’s Mem. at 6.)

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plaintiffs in this action other than Samuel and Antonio Duran are

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parties to the pending state criminal proceedings.

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plaintiffs state in their Complaint that

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(Placer

However, it does not appear that any of the

Moreover,

This complaint does not seek to challenge the bringing
of the criminal action against Samual Duran, or any
other aspect within that criminal action, until such
time as the case is over.
The criminal case is thus
mentioned herein only insofar as it relates to
defendants motivation to raid and seize Plaintiffs’
person, residences, vehicles and personal belongings.
(Compl. ¶ 52.)

The County does not address this passage, nor

does it explain how the claims of plaintiffs other than Samuel
Duran and Antonio Duran will impact state proceedings.

Absent a

more specific showing of how plaintiffs’ case will interfere with
the unspecified state criminal proceedings, the court will
decline to abstain.

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IT IS THEREFORE ORDERED that:
(1)

The motions of the County of Placer, the County of

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Sacramento, and the City of Sacramento to dismiss the

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third claim of the Complaint be, and the same hereby

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are, GRANTED with respect to plaintiffs’ claim for

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municipal liability based on searches and seizures

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without probable cause; and DENIED with respect to

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plaintiffs’ claim for municipal liability based on the

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use of excessive force;

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(2)

Plaintiffs’ request for leave to withdraw claims six

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and seven with prejudice as against the County of

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Placer, the County of Sacramento, and the City of

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Sacramento be, and the same hereby is, GRANTED; and

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(3)

The County of Placer’s request to stay these

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proceedings be, and the same hereby is, DENIED without

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prejudice.

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Plaintiffs need not file an amended complaint, but

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should they choose to do so, plaintiffs have twenty days from the

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date this Order is signed to file an amended complaint that is

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consistent with this Order.

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Dated:

April 22, 2015

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