Jones v. Jennings, et al.

Filing 16

ORDER signed by District Judge Kimberly J. Mueller on 4/19/16 ORDERING the defendants' 10 motion to dismiss is GRANTED IN PART as follows: the motion to dismiss the first claim is DENIED; the motion to dismiss the second, third, fourth, fift h, and sixth claims is GRANTED with leave to amend; and the motion to dismiss the seventh claim is GRANTED with prejudice and without leave to amend. An amended complaint shall be filed no later than twenty-one days after the date this order is filed. This order resolves ECF No. 10. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WENDY JONES,

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Plaintiff,

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No. 2:15-cv-02364-KJM-AC

v.

ORDER

JACQUELINE JENNINGS, et al.,

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Defendants.

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Having reviewed the allegations of the complaint and the parties’ briefing on

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defendants’ motion to dismiss, the court orders as follows.1

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I.

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42 U.S.C. § 1983
A.

Jennings, Doe 1, and Doe 2 (First Claim)

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On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court

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assumes a complaint’s factual allegations are true and construes them in the light most favorable

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to the non-moving party. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mollett v. Netflix, Inc., 795

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F.3d 1062, 1065 (9th Cir. 2015).

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In an effort to streamline resolution of motions to dismiss in certain cases where the
parties have counsel, when the court is granting leave to amend it is adopting a shortened form of
order consistent with the order issued here.
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Here, Wendy Jones alleges that during a post-DUI-arrest search in June 2015,

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Sacramento County Sheriff’s Deputy Jacqueline Jennings handcuffed her, twisted her arms

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painfully behind her back, forced her roughly to the floor, and violently handled her breasts and

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chest beneath her underwear. Compl. ¶¶ 14–29, ECF No. 1. Jones was never a danger to

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Jennings or anyone else. Id. ¶ 28. Two other unidentified officers stood by while Jennings

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conducted this search and did not intervene. Id. ¶ 24. Jones told Jennings and other officers that

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she was in pain, that they were hurting her, and that she suffered from post-traumatic stress

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disorder and a leg disability. Id. ¶¶ 24, 26, 27. After the search, Jennings and the two

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unidentified officers left her lying on the floor of a jail cell in pain. Id. ¶ 25. As a result of the

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deputies’ treatment, she suffered injuries to her ankle and wrist and emotional and psychological

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trauma. Id. ¶¶ 30, 34(f).

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These allegations suffice to state a claim under 42 U.S.C. § 1983 against Jennings

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and the unidentified officers for violation of Jones’s Fourth Amendment rights to be free from

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excessive force during searches and seizures. The Fourth Amendment allows officers to use only

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objectively reasonable force when they conduct searches and seizures. See, e.g., Green v. City &

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Cnty. of S.F., 751 F.3d 1039, 1049 (9th Cir. 2014). Under the test of Graham v. Connor, the

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court balances the “nature and quality of the intrusion” against the “countervailing governmental

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interests at stake” in light of “the totality of the circumstances.” 490 U.S. 386, 396 (1989)

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(citations and quotation marks omitted).

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Officers also “have a duty to intercede when their fellow officers violate the

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constitutional rights of a suspect or other citizen.” Cunningham v. Gates, 229 F.3d 1271, 1289

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(9th Cir. 2000) (quoting United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994), rev’d on

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other grounds, 518 U.S. 81 (1996)). “Thus, ‘an officer who is present at the scene and who fails

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to take reasonable steps to protect the victim of another officer’s use of excessive force can be

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held liable under section 1983 for his nonfeasance.’” Kyles v. Baker, 72 F. Supp. 3d 1021, 1040

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(N.D. Cal. 2014) (quoting Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 207 n.3 (1st

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Cir. 1990)).

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The allegations summarized above allow the court to “draw the reasonable

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inference” Jennings and the two unidentified officers used objectively unreasonable force or did

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not intervene to prevent the use of objectively unreasonable force. Iqbal, 556 U.S. at 678. The

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motion is denied with respect to this claim.

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B.

Supervisory Defendants (Fifth Claim)

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“In a § 1983 suit . . .—where masters do not answer for the torts of their

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servants—the term ‘supervisory liability’ is a misnomer.” Iqbal, 556 U.S. at 677. But

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supervisors can be liable for their own conduct. Peralta v. Dillard, 744 F.3d 1076, 1085 (9th Cir.

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2014), cert. denied, 135 S. Ct. 946 (2015). Here, the complaint’s austere allegations of

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supervisory liability do not paint a plausible picture of the supervisory defendants’ liability. See

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Compl. ¶¶ 36, 45–46. These claims are therefore dismissed with leave to amend, if amending is

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possible under Federal Rule of Civil Procedure 11. See Iqbal, 556 U.S. at 678 (legal conclusions

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do not suffice to state a claim); Sharkey v. O’Neal, 778 F.3d 767, 774 (9th Cir. 2015) (the court

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should grant leave to amend where additional factual allegations could cure a complaint’s

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defects).

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C.

The County of Sacramento (Sixth Claim)

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“A municipality or other local government may be liable under [§ 1983] if the

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governmental body itself subjects a person to a deprivation of rights or causes a person to be

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subjected to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (citation and

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quotation marks omitted). To succeed on a § 1983 claim against a municipal government, a

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plaintiff must plead and prove the defendant’s policies, customs, or practices were the moving

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force behind the constitutional violation she suffered. See, e.g., City of Canton, Ohio v. Harris,

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489 U.S. 378, 389 (1989). To withstand a motion to dismiss under Rule 12(b)(6), a case cannot

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rest on the bare allegation of unlawful policies, customs, or practices. AE ex rel. Hernandez v.

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Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012).

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Here, Jones relies on her allegation that the Sacramento County Sheriff’s

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Department ratified the individual defendants’ conduct through an investigation of the incident.

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See Compl. ¶¶ 31–33, 49. A municipal body’s ratification of its employees’ unconstitutional
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actions may support a claim under § 1983. See Clouthier v. Cnty. of Contra Costa, 591 F.3d

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1232, 1250 (9th Cir. 2010) (summarizing the required showing). But Jones’s allegations suggest

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no more than the possibility of ratification. The possibility of a defendant’s liability cannot see a

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case through to discovery. See Iqbal, 556 U.S. at 678. This claim is dismissed with leave to

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amend.

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II.

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STATE LAW CLAIMS
Jones concedes her seventh claim against the County of Sacramento should be

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dismissed. Opp’n 9, ECF No. 12. The claim is dismissed with prejudice. See Cal. Gov’t Code

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§§ 844, 844.6(a)(2).

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As to her other claims, “[a]s a prerequisite for filing suit for ‘money or damages’

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against a public entity, the California Government Claims Act requires presentation of a claim to

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the public entity.” Gen. Sec. Servs. Corp. v. Cnty. of Fresno, 815 F. Supp. 2d 1123, 1131 (E.D.

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Cal. 2011); see also Cal. Gov’t Code §§ 911.2, 915, 945.4; State of Cal. v. Superior Court,

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32 Cal. 4th 1234, 1239–44 (2004). A claim must contain certain information, including “[t]he

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date, place and other circumstances of the occurrence or transaction which gave rise to the claim,”

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“[a] general description of . . . injury, damage or loss incurred,” and “[t]he name or names of the

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public employee or employees causing the injury, damage, or loss.” Cal. Gov’t Code § 910. This

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pre-filing requirement covers claims sounding in tort, including the state-law claims here. See

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City of Stockton v. Superior Court, 42 Cal. 4th 730, 737–38 (2007). A plaintiff must both plead

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and prove her compliance with these provisions, including in federal court. Gen. Sec. Servs.

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Corp., 815 F. Supp. 2d at 1131–32.

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Here, Jones alleges that on September 17, 2015, she filed a “citizen’s complaint”

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with the Sheriff’s Department “based on the unlawful conduct” alleged in her complaint. Compl.

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¶ 31. These allegations, assumed true, do not show she complied with the provisions reviewed

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above. The state-law claims are dismissed with leave to amend, if possible within the confines of

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Federal Rule of Civil Procedure 11.

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III.

CONCLUSION
The defendants’ motion to dismiss is GRANTED IN PART as follows: (1) The

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motion to dismiss the first claim is DENIED; (2) The motion to dismiss the second, third, fourth,

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fifth, and sixth claims is GRANTED with leave to amend; and (3) The motion to dismiss the

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seventh claim is GRANTED with prejudice and without leave to amend.

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An amended complaint shall be filed no later than twenty-one days after the date
this order is filed.

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This order resolves ECF No. 10.

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IT IS SO ORDERED.

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DATED: April 19, 2016.

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UNITED STATES DISTRICT JUDGE
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