Niesen v. Garcia et al

Filing 14

MEMORANDUM AND ORDER RE: MOTION TO DISMISS signed by Senior Judge William B. Shubb on 4/16/15 ORDERING that defendants' motion to dismiss be, and the same hereby is, GRANTED. Plaintiff shall have 20 days from the date this Order is signed to file an amended complaint if she can do so in a manner consistent with this Order. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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THERESA MARIE NIESEN,
Plaintiff,

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CIV. NO. 2:14-02921 WBS DAD
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

v.
L. GARCIA, YOLO COUNTY
SHERIFF’S DEPUTY; J. CEJA,
YOLO COUNTY SHERIFF’S DEPUTY;
J. LAZARO, YOLO COUNTY
SHERIFF’S DEPUTY; M. NEVIS,
YOLO COUNTY SHERIFF’S DEPUTY;
OFFICER BIGELOW, ANIMAL
CONTROL OFFICER FOR YOLO
COUNTY; YOLO COUNTY SHERIFF’S
DEPARTMENT; YOLO COUNTY
PROBATION DEPARTMENT, and
Does 1 through 50, et al.,
Defendants.

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----oo0oo---Plaintiff Theresa Niesen brought this civil rights

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action under 42 U.S.C. § 1983 alleging defendants violated her

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Fourth and Fourteenth Amendment rights.

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court is defendants’ motion to dismiss plaintiff’s claims for
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Presently before the

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failure to state a claim upon which relief can be granted

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pursuant to Federal Rule of Civil Procedure 12(b)(6).

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I. Factual and Procedural Background

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Police entered plaintiff’s home on December 17, 2012

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looking for Shane Edgington for a probation search. (Compl. ¶ 3

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(Docket No. 1).)

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Edgington did not live there.

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at the time.

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Plaintiff alleges this was in error because
(Id. ¶ 3.)

Plaintiff was not home

Plaintiff kept seven pit bulls at her residence.

(Id.)

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When the police arrived, three of the dogs were in a bedroom, and

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the others were in kennels outside.

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officers, while they were conducting the search of the home, one

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of the dogs came out of the bedroom and lunged toward Deputy

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Ceja.

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another dog emerged from the bedroom, Deputy Garcia shot at it

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twice.

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UC Davis Veterinarian Hospital but were dead upon arrival.

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The other dogs were seized by Animal Control.

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alleges that she was only able to afford to retrieve three of her

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dogs from Animal Control after the incident.

(Id.)

(Id.)

According to the

Ceja shot at the dog several times.

(Id.)

(Id.)

As

Both of the dogs that were shot were taken to the

(Id.)

(Id.)

Plaintiff

(Id.)

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The police found .35 grams of methamphetamine and three

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smoking pipes at the residence, although they never located Shane

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Edgington.

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two days after the raid.

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(Id.)

Plaintiff alleges she was unlawfully arrested
(Id.)

Plaintiff asserts four claims against all defendants

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under 42 U.S.C. § 1983: (1) unreasonable seizure of her dogs in

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violation of the Fourth Amendment; (2) unlawful arrest in

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violation of the Fourth Amendment; (3) violation of plaintiff’s
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procedural due process rights under the Fourteenth Amendment; and

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(4) a Monell claim for agency liability.

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moves to dismiss all four claims as against it pursuant to Rule

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12(b)(6).

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third and fourth claims as against them.

Defendant Yolo County

The individual defendants move to dismiss plaintiff’s

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II. Discussion

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A. Standard

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On a motion to dismiss for failure to state a claim
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 plaintiff.

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

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

To survive a

Bell

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.

B. Claims Against Individual Defendants
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1. Procedural Due Process
To establish a procedural due process violation,

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plaintiff must show: “(1) a liberty or property interest

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protected by the Constitution; (2) a deprivation of the interest

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by the government; (3) lack of process.”

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Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993).

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alleges that defendants “attempt[ed] to threaten and/or dissuade

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Plaintiff from complaining or initiating legal action following

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these incidents” and “were unreasonable.”

Portman v. County of
Plaintiff

(Pl.’s Opp’n at 4

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(Docket No. 7).)

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interest she is alleging defendants violated, plaintiff asserted

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that police failed to follow the proper procedure before

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arresting and detaining her.

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In clarifying which liberty or property

(Id.)

The court is unable to discern from the Complaint or

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plaintiff’s clarification a plausible deprivation of a liberty or

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property interest.

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cognizable as a claim under the Fourth Amendment, not the due

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process clause of the Fourteenth Amendment.

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9 F.3d 1397, 1400-01 (recognizing that the Fourth Amendment, not

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the due process clause of the Fourteenth Amendment, applies to

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claims of unconstitutional seizures of persons) (citing Caballero

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v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992)),

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superseded on other grounds by statute as recognized in C.B. v.

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City of Sonora, 769 F.3d 1005, 1016 (9th Cir. 2014).

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Accordingly, the court will dismiss plaintiff’s procedural due

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process claim.

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2.

An arrest unsupported by probable cause is

See Larson v. Nemi,

Policy and Practice Claims Against Individual

Defendants
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Plaintiff alleges “all defendants,” presumably

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including the individual defendants, are liable for “formal

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policies and practices” that caused violations of plaintiff’s

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Fourth Amendment right to be free from unreasonable seizures.

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(See Compl. ¶ 29.)

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finding the individually named defendants liable for the formal

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policies and practices of the county.

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failed oppose the dismissal of the policy or practice claims as

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against the individually named defendants.

Plaintiff does not allege a factual basis for

Furthermore, plaintiff

(See Pl.’s Opp’n

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(addressing only defendant Yolo County with respect to

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plaintiff’s fourth claim).)

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the individually named defendants’ motion to dismiss plaintiff’s

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fourth claim as against them.

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Accordingly, the court will grant

C. Claims Against Yolo County
An entity may not be held liable under § 1983 on a

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respondeat superior theory.

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Cnty., Okl. v. Brown, 520 U.S. 397, 403 (1997) (“We have

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consistently refused to hold municipalities liable under a theory

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of respondeat superior.”).

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plaintiff seeking to impose liability on a municipality under §

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1983 to identify a municipal ‘policy’ or ‘custom’ that caused the

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plaintiff’s injury.”

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of City of New York, 436 U.S. 658, 694 (1978)).

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See Bd. of Cnty. Comm’rs of Bryan

“Instead, we have required a

Id. (citing Monell v. Dep’t of Soc. Servs.

Plaintiff merely alleges the constitutional violations

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“were the direct and proximate cause of the formal policies and

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practices of Defendants as alleged therein.”

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This threadbare allegation fails to pass muster under Iqbal.

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“Since Iqbal, courts have repeatedly rejected such conclusory
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(Compl. ¶ 30.)

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allegations that lack factual content from which one could

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plausibly infer Monell liability.”

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F. Supp. 2d 1189, 1196 (E.D. Cal. 2011) (citing cases).

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Via v. City of Fairfield, 833

Plaintiff argues that “we are in the early stages of

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the proceedings and based on the facts of the case, it is highly

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likely that plaintiff, through the discovery process, will

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uncover that there were customs, policies, and practices in place

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that led to plaintiff’s constitutional rights being violated.”

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(Pl.’s Opp’n at 2.)

Nevertheless, “[r]ule 8 . . . does not

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unlock the doors of discovery for a plaintiff armed with nothing

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more than conclusions.”

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plaintiff has failed to allege any facts in her Complaint to

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raise a reasonable expectation that discovery will reveal

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evidence to support the allegations.

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1217.

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stand.

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Iqbal, 556 U.S. at 678-79.

Here,

See Starr, 652 F.3d at

Accordingly, plaintiff’s claims against Yolo County cannot

IT IS THEREFORE ORDERED that defendants’ motion to
dismiss be, and the same hereby is, GRANTED.

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Plaintiff shall have 20 days from the date this Order

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is signed to file an amended complaint if she can do so in a

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manner consistent with this Order.

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Dated:

April 16, 2015

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