Lewis v. City of Fairfield et al.

Filing 18

ORDER signed by District Judge John A. Mendez on 2/15/2017 GRANTING IN PART and DENYING IN PART City and Khalfan's 14 Motion to Dismiss. If Lewis wants to amend his fourth cause of action against City and Khalfan, his sixth cause of action under a due process theory against City and his ninth cause of action against City and Khalfan, he shall file his second amended complaint within twenty days from the date of this Order. No new causes of action may be included in the second amend ed complaint. Defendants' responsive pleadings are due within twenty days thereafter. If Lewis elects not to amend his FAC, the case will proceed on the remaining claims, and Khalfan and City shall file their answer to the FAC within thirty days from the date of this Order. (Zignago, K.)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 KEITH LEWIS, 13 16 2:16-cv-01053-JAM-AC Plaintiff, 14 15 No. v. CITY OF FAIRFIELD; SOLANO COUNTY; AHMED KHALFAN, Defendants. ORDER GRANTING IN PART AND DENYING IN PART CITY OF FAIRFIELD AND AHMED KHALFAN’S MOTION TO DISMISS 17 18 Before this Court is Defendants City of Fairfield (“City”) 19 and Fairfield Police Officer Ahmed Khalfan’s (“Khalfan”) motion 20 to dismiss, ECF No. 14, Plaintiff Keith Lewis’ (“Lewis”) Amended 21 Complaint (“FAC”), ECF No. 6. 22 No. 15, in a brief filed largely with histrionics, rhetoric and 23 unsupported arguments rather than applicable and persuasive case 24 law. 25 claims brought by Plaintiff survive this motion to dismiss. 1 26 1 27 28 Plaintiff opposes the motion, ECF As a result, as further explained below, all but a few This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for January 10, 2017. In deciding this motion, the Court takes as true all well-pleaded facts in the complaint. 1 1 I. 2 FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND At approximately 3:00 a.m. on August 2, 2015, Officer Ahmed 3 Khalfan and an unidentified officer, John Doe #2, approached 4 Lewis who was standing in the garage of his home. FAC ¶ 11. 5 Lewis was closing his garage door when the officers shined their 6 flashlights on him. 7 a “noise complaint,” the officers demanded identification. 8 Lewis said it was inside. 9 house, Khalfan suddenly “grabbed him and slammed him flat down on Id. Explaining that they were responding to Id. ¶ 12. Id. As Lewis turned towards the 10 the driveway, then kicked him violently in the ribs.” 11 Khalfan placed Lewis under arrest for “public intoxication,” 12 handcuffed him, and put him in the patrol car. 13 Id. Id. Lewis told Khalfan “he was suffering severe chest pain and 14 needed medical attention.” 15 Khalfan called Lewis a “wife beater” and said “[Lewis] was not 16 going to the hospital, but to jail.” 17 silently,” making no effort to control Khalfan or to help Lewis. 18 Id. 19 Id. ¶ 13. Ignoring Lewis’s pleas, Id. Doe #2 “stood Lewis was taken to the Solano County Jail. Upon arrival, 20 Lewis continued to request medical attention, but Khalfan and the 21 Sheriff’s Department personnel ignored him. 22 in a cell and kept ignoring his pleas for medical attention, 23 despite Lewis’s “great difficulty breathing.” 24 morning, Lewis was taken from the cell, “purportedly booked,” and 25 released, but to Lewis’s knowledge, “he was not, and has not 26 been, charged with any offense.” 27 hospital and “confirmed via X-ray that at least one rib was 28 broken by [Khalfan’s] vicious kick.” Id. 2 Id. Id. They put Lewis In the Lewis then went to a Id. 1 Lewis sued Defendants Khalfan, an unidentified Fairfield 2 police officer (“Doe #2”), the City, at least three unidentified 3 deputies of the Solano County Sheriff’s Department (“Does #3- 4 5X”), and Solano County (“County”). 5 of action, including claims for violating Lewis’s rights under 42 6 U.S.C. § 1983, 42 U.S.C. § 1981, California Civil Code § 52.1 7 (“Bane Act”), and California Civil Code § 51.7 (“Ralph Act”). 2 8 City and Khalfan move to dismiss Lewis’s FAC and his prayer for 9 punitive damages against City. 3 The FAC includes ten causes ECF No. 14. 10 11 II. OPINION 12 A. Section 1983 Claims 13 Section 1983 vindicates federal rights, but does not itself 14 constitute a substantive right. See Albright v. Oliver, 510 15 U.S. 266, 271 (1994) (internal citation omitted). 16 successfully bring a § 1983 claim, a plaintiff must show “a 17 person acting under color of state law committed the conduct at 18 issue” and “the conduct deprived the claimant of some right, 19 privilege, or immunity protected by [federal law].” 20 Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). 21 § 1983 imposes liability for violating constitutional rights, 22 but not for violating duties arising from tort law. 23 v. McCollan, 443 U.S. 137, 146 (1979). To Leer v. Simply put, See Baker 24 2 25 26 27 28 It is not fatal that Lewis’s FAC contains DOE defendants. When the alleged defendant’s identity is unknown, plaintiff should receive an opportunity to identify the unknown defendant via discovery unless discovery clearly would not uncover the identity or unless the complaint would be dismissed on other grounds. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 3 County filed an answer to Lewis’s FAC. ECF No. 8. 3 1 1. First, Second, and Fifth Causes of Action: Fourth Amendment § 1983 Claims 2 3 Lewis brings three Fourth Amendment § 1983 claims. His 4 first cause of action implicates Khalfan, alleging that the 5 officer’s unprovoked attack constituted excessive force. 6 ¶ 16. 7 claim against City, but concede Lewis has stated one against 8 Khalfan. 9 first cause of action against City (“defendants are correct in FAC Khalfan and City contend that Lewis failed to state a Mot. at 4. Lewis does not oppose the dismissal of his 10 saying there is no claim against the City stated or intended in 11 either Plaintiff’s First or Second Causes of Action.” 12 Plaintiff’s Opposition to Motion (“Oppn.”) at 4.) Lewis brings his second cause of action against Khalfan and 13 14 Doe #2, alleging they violated his Fourth Amendment rights by 15 falsely arresting him. 16 contend that Lewis failed to state a claim against City, yet 17 concede he has stated one against Khalfan and Doe #2. 18 5. 19 second cause of action against City. 20 dismisses both of these claims with prejudice as to City. 21 FAC ¶ 17. Again, Khalfan and City Mot. at As noted above, Lewis does not oppose the dismissal of this The Court therefore Lewis’s fifth cause of action implicates Khalfan and Does 22 2-5X, alleging they falsely imprisoned him. FAC ¶ 20. 23 and City argue this claim duplicates Lewis’ second cause of 24 action (§ 1983 claim for false arrest). 25 agrees with Khalfan and City. 26 false arrest and false imprisonment requires showing the 27 officers lacked probable cause to make the arrest. 28 v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998). Mot. at 8-9. Khalfan The Court Prevailing on a § 1983 claim for 4 See Cabrera 1 Because Lewis has brought false arrest and false imprisonment 2 claims, the Court finds that Lewis’s fifth cause of action for 3 false imprisonment duplicates his second cause of action for 4 false arrest. 5 Dismissal under Fed. R. Civ. P. 12(b)(6) with prejudice 6 applies “only if it appears beyond doubt that the plaintiff can 7 prove no set of facts [supporting] his claim [that] would 8 entitle him to relief.” 9 (9th Cir. 2001). Navarro v. Block, 250 F.3d 729, 732 Because Lewis’s fifth claim duplicates his 10 second claim, the Court dismisses with prejudice the fifth cause 11 of action. 12 2. Sixth and Tenth Causes of Action: Fourteenth Amendment § 1983 Claims 13 14 Lewis brings two Fourteenth Amendment § 1983 claims. His 15 sixth claim alleges all defendants violated his due process and 16 equal protection rights. 17 is a Monell claim against City and County. 18 19 i. FAC ¶ 21. His tenth cause of action Sixth Cause of Action: Id. ¶ 25. Due Process The Due Process Clause protects the rights of people in 20 police custody “to not have officials remain deliberately 21 indifferent to their serious medical needs.” Gibson v. Cty. of 22 Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). To state a claim, 23 a plaintiff must first show a “serious medical need” such that 24 “failure to treat a prisoner’s condition could result in further 25 significant injury or the ‘unnecessary and wanton infliction of 26 pain.’” 27 Second, a plaintiff must show the defendant’s response to the 28 serious medical need was deliberately indifferent by alleging Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 5 1 “(a) a purposeful act or failure to respond to a prisoner’s pain 2 or possible medical need and (b) harm caused by the 3 indifference.” 4 indifference when officers or prison officials “deny, delay or 5 intentionally interfere with medical treatment.” 6 United States, 838 F.2d 390, 394 (9th Cir. 1988). 7 Id. A plaintiff has shown deliberate Hutchinson v. Lewis argues Khalfan and Does #2-5X acted deliberately 8 indifferent by ignoring his repeated pleas for medical 9 assistance. FAC ¶ 21. Khalfan and City contend Lewis did not 10 allege that “Khalfan knew of and disregarded an excessive risk 11 to plaintiff’s health and safety,” and that merely inferring 12 Khalfan “should have known” is insufficient. Mot. at 10. 13 The Court finds Lewis’ argument to be more persuasive. 14 Lewis alleged that he experienced “severe chest pain and needed 15 medical attention”—a serious medical need. 16 also Jett, 439 F.3d at 1096. 17 element of a deliberate indifference claim by alleging that he 18 repeatedly asked for medical attention but Khalfan ignored his 19 pleas, demonstrating that Khalfan was, indeed, “aware of a 20 substantial risk of serious harm.” 21 Lolli v. Cty. of Orange, 351 F.3d 410, 419 (9th Cir. 2003). 22 Lewis suffered a broken rib. 23 Khalfan and City’s arguments, Lewis has clearly pled sufficient 24 facts to maintain his deliberate indifference claim against 25 Khalfan and Does #2-5X. FAC ¶¶ 13-14. See Lewis also satisfied the second FAC ¶¶ 12-14. FAC ¶ 14. See also And In other words, despite 26 With respect to the City, in order to allege a § 1983 claim 27 against a municipality, a plaintiff must state facts showing the 28 municipality had a policy or custom that caused the plaintiff’s 6 1 constitutional injury. 2 Soc. Servs., 436 U.S. 658, 694 (1978). 3 “policy or custom” by describing, for instance, an express 4 municipal policy—like an ordinance, regulation, or policy 5 statement—or a “widespread practice that, although not 6 authorized by written law or express municipal policy, is so 7 permanent and well settled as to constitute a custom or usage 8 with the force of law.” 9 Praprotnik, 485 U.S. 112, 127 (1988) (internal citations and See Monell v. New York City Dep’t of A plaintiff alleges a See id. at 691; City of St. Louis v. 10 quotation marks omitted). Next plaintiff must show a sufficient 11 causal connection between enforcing that “policy or custom” and 12 a constitutional violation. 13 But a municipality cannot face § 1983 liability under a 14 respondeat superior theory. See Monell, 436 U.S. at 694-95. See id. at 691. 15 Lewis maintains City has one or more “unconstitutional 16 policies, practices, or customs ... known to, permitted and 17 encouraged by the highest relevant officials” that involve 18 “regular ‘blind eye’ indulgence, condonation, misrepresentation 19 and cover-up of harassment, intimidation and mistreatment of ... 20 African-American[s].” 21 because Lewis did not allege facts “showing a policy, pattern, 22 practice, or custom that was the ‘moving force’ behind any 23 alleged constitutional violation.” 24 City is correct. FAC ¶ 25. City argues this claim fails Mot. at 11. Lewis’s allegations do not show a policy 25 or custom that constituted the “moving force” behind his 26 Fourteenth Amendment violation. 27 New and conclusory rhetoric in his opposition brief that “[w]e 28 live in a racist society” and that “[t]he great mass of Black See Monell, 436 U.S. at 694-95. 7 1 people are systematically discriminated against in all spheres” 2 does not salvage his claim. 3 United States, 990 F.2d 451, 454 (9th Cir. 1993) (emphasizing 4 that evidence outside pleadings normally not considered when 5 deciding 12(b)(6) motions). 6 against City but the Court finds that further amendment is not 7 necessarily futile. 8 applies to City, is dismissed without prejudice. 9 ii. Opp’n at 6. See also Farr v. Lewis has not stated a Monell claim Therefore, this cause of action as it Sixth Cause of Action: Equal Protection 10 Lewis also brings his sixth cause of action under an equal 11 protection theory, explaining that defendants’ “malevolence” in 12 refusing to provide medical care after Khalfan “viciously kicked 13 him in the ribs” violated the Equal Protection Clause. 14 ¶ 21. 15 FAC To state an equal protection claim under § 1983, a 16 plaintiff must show the defendant acted with an intent or 17 purpose to discriminate against the plaintiff based on 18 membership in a protected class. 19 250 F.3d 668, 686 (9th Cir. 2001) (internal citation and 20 quotation marks omitted). 21 no facts “showing discrimination or discriminatory animus 22 because of membership in a protected class,” and that “[m]ere 23 allegations that [Lewis] is an African American man are 24 insufficient.” 25 Lee v. City of Los Angeles, Khalfan and City argue Lewis states Mot. at 9. The Court agrees with Khalfan and City. Lewis does not 26 describe how two classifications of persons were treated 27 differently under the law. 28 1:08-cv-01399, 2010 WL 892114, at *1 (E.D. Cal. Mar. 9, 2010). See Harvey v. City of Fresno, No. 8 1 Simply alleging a violation occurred because the victim was 2 African-American is insufficient under Iqbal. 3 WL 892114 at *11. 4 claim against City for the same reasons he failed to state one 5 under a deliberate indifference theory. 6 II.A.2.i. 7 claim against Khalfan or City and given that the Court finds 8 that it would be futile to allow any further amendment, the 9 claim is dismissed with prejudice under this theory. 10 11 See Harvey, 2012 Additionally, Lewis fails to state a Monell See supra Part In short, Lewis has not stated an equal protection iii. Tenth Cause of Action Lewis brings another Monell claim against City and County, 12 alleging joint liability “for the substantive violations of 13 [his] rights under the U.S. Constitution and federal law ... by 14 virtue of one or more evident unconstitutional policies, 15 practices, or customs....” 16 correctly argue this claim duplicates Lewis’s sixth cause of 17 action, see Mot. at 12-13, the Court dismisses with prejudice 18 Lewis’s tenth cause of action. FAC ¶ 25. Because Khalfan and City 19 B. Bane Act Claims 20 “The essence of a Bane Act claim is that the defendant, by 21 [threat, intimidation, or coercion] tried to or did prevent the 22 plaintiff from doing something he or she had the right to do 23 under the law or to force the plaintiff to do something that he 24 or she was not required to do under the law.” 25 of Modesto, No. 1:10-cv-01370, 2013 WL 6415620, at *10 (E.D. 26 Cal. Dec. 9, 2013) (internal citation omitted). 27 CIV. CODE § 52.1 (West 2015). 28 elements: Rodriguez v. City See also CAL. A Bane Act claim has two distinct “A plaintiff must show (1) intentional interference 9 1 or attempted interference with a state or federal constitutional 2 or legal right, and (2) the interference or attempted 3 interference was by threats, intimidation, or coercion.” 4 v. City of Sacramento, 234 Cal. App. 4th 41, 67 (2015). 5 Allen Lewis sues several defendants for Bane Act claims under 6 different theories. 7 Khalfan, Doe #2, and City, alleging false arrest with wrongful 8 force. 9 all defendants, alleging false imprisonment. FAC ¶ 18. He brings his third cause of action against He brings his seventh cause of action against Id. ¶ 22. And he 10 brings his eighth cause of action against all defendants for 11 refusing medical care (i.e., deliberate indifference). 12 ¶ 23. 13 14 1. Id. Third Cause of Action Lewis alleges Khalfan, Doe #2, and City falsely arrested 15 him with wrongful force. FAC ¶ 18. 16 clear that a wrongful arrest or detention, without more, does 17 not satisfy the Bane Act’s elements. 18 Angeles, 203 Cal. App. 4th 947, 959-60 (2012). 19 arrest is unlawful and excessive force is applied in making the 20 arrest, there has been coercion ‘independent from the coercion 21 inherent in the wrongful detention itself.’” 22 Los Angeles, 217 Cal. App. 4th 968, 978 (2013) (emphasis added). 23 Lewis alleges that Khalfan’s unprovoked, vicious attack 24 constituted false arrest with wrongful force because Khalfan 25 lacked probable cause and slammed Lewis on the driveway and 26 kicked him violently in the ribs. 27 City argue Lewis’s allegations “relate only to alleged use of 28 force inherent in effectuating [Lewis’s] allegedly unlawful 10 California courts make See Shoyoye v. Cty. of Los Yet when “an Bender v. Cty. of FAC ¶¶ 11-13. Khalfan and 1 seizure,” and so Lewis fails to state a claim under Shoyoye. 2 Mot. at 6-7. 3 Khalfan and the City’s reliance on Shoyoye is misplaced in 4 that this case differs from Shoyoye. 5 resulted in unlawfully detaining a prisoner that had been 6 ordered released. 7 negligent in assigning to Shoyoye a parole hold, so the court 8 concluded that any intimidation or coercion that occurred was 9 simply that which is reasonable and incident to maintaining a Id. at 961. There a computer error The county employees were merely 10 jail. 11 pleading stage, the Shoyoye rule applies only when the conduct 12 is unintentional. 13 (citing other cases). 14 Id. Federal courts have since clarified that, at the See Rodriguez, 2013 WL 6415620, at *13 Here, nothing that Khalfan did was unintentional. Lewis 15 states Khalfan “grabbed him and slammed him on the driveway, 16 then kicked him violently in the ribs.” 17 does that resemble an inadvertent computer error. 18 here, an arrest is unlawful and excessive force is applied in 19 making the arrest, there has been coercion ‘independent from the 20 coercion inherent in the wrongful detention itself’—a violation 21 of the Bane Act.” 22 1196 (9th Cir. 2015) (citing Bender v. Cty. of Los Angeles, 217 23 Cal. App. 4th 968 (2013)). 24 FAC ¶ 12. In no way “Where, as Lyall v. City of Los Angeles, 807 F.3d 1178, Lewis also brings this claim against City, but Khalfan and 25 City argue—without offering supporting authority—that this is 26 improper because City cannot be vicariously liable. 27 Although no court has interpreted the Bane Act’s “person or 28 persons” language, several federal courts interpreting the 11 Mot. at 7. 1 statute have concluded that municipalities fall within its 2 purview. 3 1117 (E.D. Cal. 2012) (citing other cases). 4 allows vicarious liability. 5 2015). 6 Khalfan’s and Doe #2’s conduct. 7 stated a Bane Act claim against Khalfan, this suffices to state 8 one against City under a vicarious liability theory. See Sanchez v. City of Fresno, 914 F. Supp. 2d 1079, CAL. GOV’T CODE § 815.2(a) (West Here, Lewis believes City is vicariously liable for 9 10 California law also 2. FAC ¶ 18. Because Lewis has Seventh Cause of Action Lewis also brings a Bane Act claim against all defendants 11 under a false imprisonment theory. 12 contend this claim duplicates Lewis’s third cause of action. 13 Mot at 11. 14 imprisonment are not separate torts. 15 way of committing a false imprisonment.” 16 Fairfield, No. 2:16-cv-00392, 2016 WL 3753324, at *5 (E.D. Cal. 17 July 13, 2016) (internal citation omitted). 18 seventh claim for false imprisonment duplicates his third claim 19 for false arrest with wrongful force, the Court dismisses with 20 prejudice the seventh cause of action. 21 22 The Court agrees. 3. FAC ¶ 22. Khalfan and City “False arrest and false False arrest is but one Basilio v. City of Because Lewis’s Eighth Cause of Action Lewis brings his eighth claim against all defendants, 23 alleging their refusal to provide medical care (i.e., their 24 deliberate indifference) violated the Bane Act. 25 Khalfan and City urge this Court to dismiss this claim because 26 it duplicates Lewis’s third cause of action. 27 28 FAC ¶ 23. Mot. at 11. The Court agrees with Khalfan and City, but for a different reason. Scant authority exists for premising a Bane Act claim 12 1 on deliberate indifference in the prison context. 2 Reddy, No. 2:10-cv-02980, 2014 WL 1877566, at *29 (E.D. Cal. May 3 9, 2014). 4 the statute. 5 sufficient to support an action brought under subdivision (a) or 6 (b).” 7 that have tackled this question, most hold that a plaintiff 8 cannot premise a Bane Act claim on a deliberate indifference 9 theory. See Elliot v. Because precedent is lacking, this Court begins with The Bane Act provides that “[s]peech alone is not CAL. CIV. CODE § 52.1(j) (West 2015). Of the few courts See Elliot, 2014 WL 1877566 at *29; Lopez v. Cty. of 10 Tulare, No. CV-F-11-1547, 2012 WL 33244, at *11 n.8 (E.D. Cal. 11 Jan. 6, 2012) (citing Brook v. Carey, 352 Fed. Appx. 184, 185 12 (9th Cir. 2009)). 13 binding authority—for premising his Bane Act claim on a 14 deliberate indifference theory, the Court dismisses with 15 prejudice Lewis’s eighth cause of action. Because Lewis offers no authority—let alone 16 C. Section 1981 – Ninth Cause of Action 17 Lewis brings a § 1981 claim against all defendants in his 18 ninth cause of action. FAC ¶ 24. See also 42 U.S.C. § 1981(a) 19 (providing, in part, that all persons have the same right to, 20 among other things, make and enforce contracts as enjoyed by 21 white citizens). 22 must show intentional or purposeful discrimination. 23 Bank of Am. Nat’l Trust & Sav. Ass’n, 879 F.2d 459, 467 (9th 24 Cir. 1989). 25 racial minority; (2) defendant intended to discriminate based on 26 race; and (3) the discrimination concerned an activity 27 enumerated in the statute. See Keum v. Virgin Am. Inc., 781 F. 28 Supp. 2d 944, 954 (N.D. Cal. 2011). To establish a § 1981 claim, the plaintiff DeHorney v. Specifically, the plaintiff must allege (1) he is a 13 1 Lewis claims all defendants violated his § 1981 rights 2 because their “deliberate maltreatment ... flowed from and came 3 about because of [their] ingrained racial animus towards him 4 because he is a Black Man.” 5 Lewis alleges “no facts related to the making or enforcement of 6 contracts” nor facts “supporting his conclusion of ‘racial 7 animus’ or discrimination.” 8 9 FAC ¶ 24. Khalfan and City argue Mot. at 11-12. The Court agrees with Khalfan and City. Lewis has not alleged an activity enumerated in the statute or discriminatory 10 animus. 11 racial remarks sufficiently state a § 1981 claim. 12 McKay, 869 F.2d 1341, 1345 (9th Cir. 1989). 13 not only denies that Khalfan and Doe #2 “uttered the ‘N-word’ or 14 any other racist epithet,” but Lewis also “derives his charge of 15 racial animus from his overwhelming moral certainty, fortified 16 by his natural, super-alert perception of words, and eyes, and 17 tone of voice and other body language, that he never in life 18 would have been dealt with as he was by these officers ... if he 19 were White. 20 Lewis, racial animus reads “as a veritable presumption.” 21 Such legally unsupported arguments are insufficient to overcome 22 Khalfan’s motion to dismiss this claim against him. 23 The Ninth Circuit has held that overt acts coupled with Period.” Opp’n at 6. See Evans v. Yet, here, Lewis These days, according to Lewis also fails to state a claim against City. Id. Lewis did 24 not allege a policy or custom as the moving force behind any 25 alleged violation. 26 liable under § 1981, see Jett v. Dallas Indep. Sch. Dist., 491 27 U.S. 701, 735-36 (1989), the Court dismisses Lewis’s ninth cause 28 of action against City. Because municipalities cannot be vicariously The Court finds that further amendment 14 1 is not necessarily futile and, therefore, dismisses this claim 2 without prejudice. 3 D. Ralph Act – Fourth Cause of Action 4 Lewis sues Khalfan, Doe #2, and City in the fourth cause of 5 action for violating the Ralph Act, alleging they are 6 “apparently racist” because he is a “Black Man” and they 7 committed an unprovoked, vicious attack on him. 8 The Ralph Act ensures all persons in California “have the right 9 to be free from any violence, or intimidation by threat of FAC ¶¶ 2,19. 10 violence, committed against their persons ... on account of any 11 characteristic listed or defined in subdivision (b) or (e) of 12 Section 51.” 13 identifies “race” and “color” among protected characteristics. 14 Once again, Khalfan and City argue Lewis has not sufficiently 15 alleged racial animus. 16 CAL. CIV. CODE § 51.7 (West 2015). Section 51(b) Mot. at 7-8. Khalfan and City are correct. For the same reasons the 17 Court found that Lewis insufficiently alleged racial animus to 18 support his § 1981 claim, the Court finds that Lewis has 19 inadequately alleged racial animus here. 20 And, because Lewis fails to state a claim against Khalfan, Lewis 21 also fails to state one under a vicarious liability theory 22 against City. 23 fourth cause of action. See supra Part II.C. The Court dismisses without prejudice Lewis’s 24 E. Punitive Damages 25 Municipalities are immune from punitive damages under 26 §§ 1983 and 1981. See City of Newport v. Fact Concerts, Inc., 27 453 U.S. 247, 271 (1981). 28 746 F.2d 1205, 1270 (7th Cir. 1984). See also Bell v. City of Milwaukee, 15 California law also 1 forbids imposing punitive damages against public entities. 2 CAL. GOV’T CODE § 818. 3 claim for punitive damages against City. See The Court dismisses with prejudice Lewis’s 4 5 6 III. ORDER For the reasons set forth above, the Court GRANTS in part 7 and DENIES in part City and Khalfan’s Motion to Dismiss as 8 follows: 9 10 11 12 13 14 15 16 17 1. City and Khalfan’s motion to dismiss the first and second causes of action against City is GRANTED WITH PREJUDICE; 2. City and Khalfan’s motion to dismiss the third cause of action is DENIED; 3. City and Khalfan’s motion to dismiss the fourth cause of action is GRANTED WITHOUT PREJUDICE; 4. City and Khalfan’s motion to dismiss the fifth cause of action is GRANTED WITH PREJUDICE; 5. City and Khalfan’s motion to dismiss the sixth cause of 18 action is GRANTED WITHOUT PREJUDICE as to City to the extent it 19 is brought under a due process theory; GRANTED WITH PREJUDICE as 20 to City and Khalfan to the extent it is brought under an equal 21 protection theory; and DENIED as to Khalfan to the extent it is 22 brought under a due process theory. 23 24 25 26 27 28 6. City and Khalfan’s motion to dismiss the seventh cause of action is GRANTED WITH PREJUDICE; 7. City and Khalfan’s motion to dismiss the eighth cause of action is GRANTED WITH PREJUDICE; 8. City and Khalfan’s motion to dismiss the ninth cause of action is GRANTED WITHOUT PREJUDICE; 16 1 2 3 4 9. City and Khalfan’s motion to dismiss the tenth cause of action is GRANTED WITH PREJUDICE; and 10. City and Khalfan’s motion to dismiss the punitive damages claim against City is GRANTED WITH PREJUDICE. 5 If Lewis wants to amend his fourth cause of action against 6 City and Khalfan, his sixth cause of action under a due process 7 theory against City and his ninth cause of action against City 8 and Khalfan, he shall file his second amended complaint within 9 twenty days from the date of this Order. No new causes of action 10 may be included in the second amended complaint. 11 responsive pleadings are due within twenty days thereafter. 12 Lewis elects not to amend his FAC, the case will proceed on the 13 remaining claims, and Khalfan and City shall file their answer to 14 the FAC within thirty days from the date of this Order. 15 16 IT IS SO ORDERED. Dated: February 15, 2017 17 18 19 20 21 22 23 24 25 26 27 28 17 Defendants’ If

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