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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEITH LEWIS,

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2:16-cv-01053-JAM-AC

Plaintiff,

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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

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Before this Court is Defendants City of Fairfield (“City”)

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and Fairfield Police Officer Ahmed Khalfan’s (“Khalfan”) motion

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to dismiss, ECF No. 14, Plaintiff Keith Lewis’ (“Lewis”) Amended

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Complaint (“FAC”), ECF No. 6.

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No. 15, in a brief filed largely with histrionics, rhetoric and

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unsupported arguments rather than applicable and persuasive case

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law.

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claims brought by Plaintiff survive this motion to dismiss. 1

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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.
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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

At approximately 3:00 a.m. on August 2, 2015, Officer Ahmed

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Khalfan and an unidentified officer, John Doe #2, approached

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Lewis who was standing in the garage of his home. FAC ¶ 11.

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Lewis was closing his garage door when the officers shined their

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flashlights on him.

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a “noise complaint,” the officers demanded identification.

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Lewis said it was inside.

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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

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the driveway, then kicked him violently in the ribs.”

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Khalfan placed Lewis under arrest for “public intoxication,”

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handcuffed him, and put him in the patrol car.

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Id.

Id.

Lewis told Khalfan “he was suffering severe chest pain and

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needed medical attention.”

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Khalfan called Lewis a “wife beater” and said “[Lewis] was not

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going to the hospital, but to jail.”

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silently,” making no effort to control Khalfan or to help Lewis.

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Id.

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Id. ¶ 13.

Ignoring Lewis’s pleas,

Id.

Doe #2 “stood

Lewis was taken to the Solano County Jail.

Upon arrival,

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Lewis continued to request medical attention, but Khalfan and the

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Sheriff’s Department personnel ignored him.

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in a cell and kept ignoring his pleas for medical attention,

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despite Lewis’s “great difficulty breathing.”

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morning, Lewis was taken from the cell, “purportedly booked,” and

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released, but to Lewis’s knowledge, “he was not, and has not

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been, charged with any offense.”

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hospital and “confirmed via X-ray that at least one rib was

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broken by [Khalfan’s] vicious kick.”

Id.

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Id.

Id.

They put Lewis

In the

Lewis then went to a

Id.

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Lewis sued Defendants Khalfan, an unidentified Fairfield

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police officer (“Doe #2”), the City, at least three unidentified

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deputies of the Solano County Sheriff’s Department (“Does #3-

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5X”), and Solano County (“County”).

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of action, including claims for violating Lewis’s rights under 42

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U.S.C. § 1983, 42 U.S.C. § 1981, California Civil Code § 52.1

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(“Bane Act”), and California Civil Code § 51.7 (“Ralph Act”). 2

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City and Khalfan move to dismiss Lewis’s FAC and his prayer for

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punitive damages against City. 3

The FAC includes ten causes

ECF No. 14.

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II.

OPINION

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A.

Section 1983 Claims

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Section 1983 vindicates federal rights, but does not itself

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constitute a substantive right.

See Albright v. Oliver, 510

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U.S. 266, 271 (1994) (internal citation omitted).

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successfully bring a § 1983 claim, a plaintiff must show “a

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person acting under color of state law committed the conduct at

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issue” and “the conduct deprived the claimant of some right,

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privilege, or immunity protected by [federal law].”

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Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988).

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§ 1983 imposes liability for violating constitutional rights,

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but not for violating duties arising from tort law.

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v. McCollan, 443 U.S. 137, 146 (1979).

To

Leer v.

Simply put,

See Baker

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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).
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County filed an answer to Lewis’s FAC. ECF No. 8.
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1.

First, Second, and Fifth Causes of Action:
Fourth Amendment § 1983 Claims

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Lewis brings three Fourth Amendment § 1983 claims.

His

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first cause of action implicates Khalfan, alleging that the

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officer’s unprovoked attack constituted excessive force.

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¶ 16.

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claim against City, but concede Lewis has stated one against

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Khalfan.

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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

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saying there is no claim against the City stated or intended in

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either Plaintiff’s First or Second Causes of Action.”

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Plaintiff’s Opposition to Motion (“Oppn.”) at 4.)
Lewis brings his second cause of action against Khalfan and

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Doe #2, alleging they violated his Fourth Amendment rights by

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falsely arresting him.

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contend that Lewis failed to state a claim against City, yet

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concede he has stated one against Khalfan and Doe #2.

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5.

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second cause of action against City.

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dismisses both of these claims with prejudice as to City.

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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

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2-5X, alleging they falsely imprisoned him.

FAC ¶ 20.

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and City argue this claim duplicates Lewis’ second cause of

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action (§ 1983 claim for false arrest).

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agrees with Khalfan and City.

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false arrest and false imprisonment requires showing the

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officers lacked probable cause to make the arrest.

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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

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See Cabrera

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Because Lewis has brought false arrest and false imprisonment

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claims, the Court finds that Lewis’s fifth cause of action for

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false imprisonment duplicates his second cause of action for

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false arrest.

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Dismissal under Fed. R. Civ. P. 12(b)(6) with prejudice

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applies “only if it appears beyond doubt that the plaintiff can

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prove no set of facts [supporting] his claim [that] would

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entitle him to relief.”

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(9th Cir. 2001).

Navarro v. Block, 250 F.3d 729, 732

Because Lewis’s fifth claim duplicates his

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second claim, the Court dismisses with prejudice the fifth cause

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of action.

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2.

Sixth and Tenth Causes of Action:
Fourteenth Amendment § 1983 Claims

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Lewis brings two Fourteenth Amendment § 1983 claims.

His

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sixth claim alleges all defendants violated his due process and

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equal protection rights.

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is a Monell claim against City and County.

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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

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police custody “to not have officials remain deliberately

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indifferent to their serious medical needs.”

Gibson v. Cty. of

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Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).

To state a claim,

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a plaintiff must first show a “serious medical need” such that

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“failure to treat a prisoner’s condition could result in further

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significant injury or the ‘unnecessary and wanton infliction of

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pain.’”

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Second, a plaintiff must show the defendant’s response to the

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serious medical need was deliberately indifferent by alleging

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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“(a) a purposeful act or failure to respond to a prisoner’s pain

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or possible medical need and (b) harm caused by the

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indifference.”

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indifference when officers or prison officials “deny, delay or

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intentionally interfere with medical treatment.”

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United States, 838 F.2d 390, 394 (9th Cir. 1988).

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Id.

A plaintiff has shown deliberate

Hutchinson v.

Lewis argues Khalfan and Does #2-5X acted deliberately

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indifferent by ignoring his repeated pleas for medical

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assistance.

FAC ¶ 21.

Khalfan and City contend Lewis did not

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allege that “Khalfan knew of and disregarded an excessive risk

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to plaintiff’s health and safety,” and that merely inferring

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Khalfan “should have known” is insufficient.

Mot. at 10.

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The Court finds Lewis’ argument to be more persuasive.

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Lewis alleged that he experienced “severe chest pain and needed

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medical attention”—a serious medical need.

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also Jett, 439 F.3d at 1096.

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element of a deliberate indifference claim by alleging that he

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repeatedly asked for medical attention but Khalfan ignored his

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pleas, demonstrating that Khalfan was, indeed, “aware of a

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substantial risk of serious harm.”

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Lolli v. Cty. of Orange, 351 F.3d 410, 419 (9th Cir. 2003).

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Lewis suffered a broken rib.

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Khalfan and City’s arguments, Lewis has clearly pled sufficient

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facts to maintain his deliberate indifference claim against

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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

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With respect to the City, in order to allege a § 1983 claim

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against a municipality, a plaintiff must state facts showing the

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municipality had a policy or custom that caused the plaintiff’s
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constitutional injury.

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Soc. Servs., 436 U.S. 658, 694 (1978).

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“policy or custom” by describing, for instance, an express

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municipal policy—like an ordinance, regulation, or policy

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statement—or a “widespread practice that, although not

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authorized by written law or express municipal policy, is so

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permanent and well settled as to constitute a custom or usage

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with the force of law.”

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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.

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quotation marks omitted).

Next plaintiff must show a sufficient

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causal connection between enforcing that “policy or custom” and

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a constitutional violation.

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But a municipality cannot face § 1983 liability under a

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respondeat superior theory.

See Monell, 436 U.S. at 694-95.

See id. at 691.

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Lewis maintains City has one or more “unconstitutional

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policies, practices, or customs ... known to, permitted and

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encouraged by the highest relevant officials” that involve

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“regular ‘blind eye’ indulgence, condonation, misrepresentation

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and cover-up of harassment, intimidation and mistreatment of ...

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African-American[s].”

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because Lewis did not allege facts “showing a policy, pattern,

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practice, or custom that was the ‘moving force’ behind any

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alleged constitutional violation.”

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City is correct.

FAC ¶ 25.

City argues this claim fails

Mot. at 11.

Lewis’s allegations do not show a policy

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or custom that constituted the “moving force” behind his

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Fourteenth Amendment violation.

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New and conclusory rhetoric in his opposition brief that “[w]e

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live in a racist society” and that “[t]he great mass of Black

See Monell, 436 U.S. at 694-95.

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people are systematically discriminated against in all spheres”

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does not salvage his claim.

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United States, 990 F.2d 451, 454 (9th Cir. 1993) (emphasizing

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that evidence outside pleadings normally not considered when

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deciding 12(b)(6) motions).

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against City but the Court finds that further amendment is not

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necessarily futile.

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applies to City, is dismissed without prejudice.

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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

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Lewis also brings his sixth cause of action under an equal

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protection theory, explaining that defendants’ “malevolence” in

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refusing to provide medical care after Khalfan “viciously kicked

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him in the ribs” violated the Equal Protection Clause.

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¶ 21.

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FAC

To state an equal protection claim under § 1983, a

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plaintiff must show the defendant acted with an intent or

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purpose to discriminate against the plaintiff based on

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membership in a protected class.

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250 F.3d 668, 686 (9th Cir. 2001) (internal citation and

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quotation marks omitted).

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no facts “showing discrimination or discriminatory animus

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because of membership in a protected class,” and that “[m]ere

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allegations that [Lewis] is an African American man are

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insufficient.”

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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

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describe how two classifications of persons were treated

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differently under the law.

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1:08-cv-01399, 2010 WL 892114, at *1 (E.D. Cal. Mar. 9, 2010).

See Harvey v. City of Fresno, No.

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Simply alleging a violation occurred because the victim was

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African-American is insufficient under Iqbal.

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WL 892114 at *11.

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claim against City for the same reasons he failed to state one

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under a deliberate indifference theory.

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II.A.2.i.

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claim against Khalfan or City and given that the Court finds

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that it would be futile to allow any further amendment, the

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claim is dismissed with prejudice under this theory.

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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,

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alleging joint liability “for the substantive violations of

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[his] rights under the U.S. Constitution and federal law ... by

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virtue of one or more evident unconstitutional policies,

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practices, or customs....”

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correctly argue this claim duplicates Lewis’s sixth cause of

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action, see Mot. at 12-13, the Court dismisses with prejudice

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Lewis’s tenth cause of action.

FAC ¶ 25.

Because Khalfan and City

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B.

Bane Act Claims

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“The essence of a Bane Act claim is that the defendant, by

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[threat, intimidation, or coercion] tried to or did prevent the

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plaintiff from doing something he or she had the right to do

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under the law or to force the plaintiff to do something that he

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or she was not required to do under the law.”

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of Modesto, No. 1:10-cv-01370, 2013 WL 6415620, at *10 (E.D.

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Cal. Dec. 9, 2013) (internal citation omitted).

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CIV. CODE § 52.1 (West 2015).

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elements:

Rodriguez v. City

See also CAL.

A Bane Act claim has two distinct

“A plaintiff must show (1) intentional interference
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or attempted interference with a state or federal constitutional

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or legal right, and (2) the interference or attempted

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interference was by threats, intimidation, or coercion.”

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v. City of Sacramento, 234 Cal. App. 4th 41, 67 (2015).

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Allen

Lewis sues several defendants for Bane Act claims under

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different theories.

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Khalfan, Doe #2, and City, alleging false arrest with wrongful

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force.

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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

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brings his eighth cause of action against all defendants for

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refusing medical care (i.e., deliberate indifference).

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¶ 23.

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1.

Id.

Third Cause of Action

Lewis alleges Khalfan, Doe #2, and City falsely arrested

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him with wrongful force.

FAC ¶ 18.

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clear that a wrongful arrest or detention, without more, does

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not satisfy the Bane Act’s elements.

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Angeles, 203 Cal. App. 4th 947, 959-60 (2012).

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arrest is unlawful and excessive force is applied in making the

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arrest, there has been coercion ‘independent from the coercion

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inherent in the wrongful detention itself.’”

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Los Angeles, 217 Cal. App. 4th 968, 978 (2013) (emphasis added).

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Lewis alleges that Khalfan’s unprovoked, vicious attack

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constituted false arrest with wrongful force because Khalfan

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lacked probable cause and slammed Lewis on the driveway and

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kicked him violently in the ribs.

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City argue Lewis’s allegations “relate only to alleged use of

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force inherent in effectuating [Lewis’s] allegedly unlawful
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California courts make

See Shoyoye v. Cty. of Los
Yet when “an

Bender v. Cty. of

FAC ¶¶ 11-13.

Khalfan and

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seizure,” and so Lewis fails to state a claim under Shoyoye.

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Mot. at 6-7.

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Khalfan and the City’s reliance on Shoyoye is misplaced in

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that this case differs from Shoyoye.

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resulted in unlawfully detaining a prisoner that had been

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ordered released.

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negligent in assigning to Shoyoye a parole hold, so the court

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concluded that any intimidation or coercion that occurred was

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simply that which is reasonable and incident to maintaining a

Id. at 961.

There a computer error

The county employees were merely

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jail.

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pleading stage, the Shoyoye rule applies only when the conduct

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is unintentional.

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(citing other cases).

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Id.

Federal courts have since clarified that, at the

See Rodriguez, 2013 WL 6415620, at *13

Here, nothing that Khalfan did was unintentional.

Lewis

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states Khalfan “grabbed him and slammed him on the driveway,

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then kicked him violently in the ribs.”

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does that resemble an inadvertent computer error.

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here, an arrest is unlawful and excessive force is applied in

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making the arrest, there has been coercion ‘independent from the

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coercion inherent in the wrongful detention itself’—a violation

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of the Bane Act.”

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1196 (9th Cir. 2015) (citing Bender v. Cty. of Los Angeles, 217

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Cal. App. 4th 968 (2013)).

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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

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City argue—without offering supporting authority—that this is

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improper because City cannot be vicariously liable.

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Although no court has interpreted the Bane Act’s “person or

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persons” language, several federal courts interpreting the
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Mot. at 7.

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statute have concluded that municipalities fall within its

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purview.

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1117 (E.D. Cal. 2012) (citing other cases).

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allows vicarious liability.

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2015).

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Khalfan’s and Doe #2’s conduct.

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stated a Bane Act claim against Khalfan, this suffices to state

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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

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California law also

2.

FAC ¶ 18.

Because Lewis has

Seventh Cause of Action

Lewis also brings a Bane Act claim against all defendants

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under a false imprisonment theory.

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contend this claim duplicates Lewis’s third cause of action.

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Mot at 11.

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imprisonment are not separate torts.

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way of committing a false imprisonment.”

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Fairfield, No. 2:16-cv-00392, 2016 WL 3753324, at *5 (E.D. Cal.

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July 13, 2016) (internal citation omitted).

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seventh claim for false imprisonment duplicates his third claim

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for false arrest with wrongful force, the Court dismisses with

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prejudice the seventh cause of action.

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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,

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alleging their refusal to provide medical care (i.e., their

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deliberate indifference) violated the Bane Act.

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Khalfan and City urge this Court to dismiss this claim because

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it duplicates Lewis’s third cause of action.

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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
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on deliberate indifference in the prison context.

2

Reddy, No. 2:10-cv-02980, 2014 WL 1877566, at *29 (E.D. Cal. May

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9, 2014).

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the statute.

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sufficient to support an action brought under subdivision (a) or

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(b).”

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that have tackled this question, most hold that a plaintiff

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cannot premise a Bane Act claim on a deliberate indifference

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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

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Tulare, No. CV-F-11-1547, 2012 WL 33244, at *11 n.8 (E.D. Cal.

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Jan. 6, 2012) (citing Brook v. Carey, 352 Fed. Appx. 184, 185

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(9th Cir. 2009)).

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binding authority—for premising his Bane Act claim on a

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deliberate indifference theory, the Court dismisses with

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prejudice Lewis’s eighth cause of action.

Because Lewis offers no authority—let alone

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C.

Section 1981 – Ninth Cause of Action

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Lewis brings a § 1981 claim against all defendants in his

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ninth cause of action.

FAC ¶ 24.

See also 42 U.S.C. § 1981(a)

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(providing, in part, that all persons have the same right to,

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among other things, make and enforce contracts as enjoyed by

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white citizens).

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must show intentional or purposeful discrimination.

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Bank of Am. Nat’l Trust & Sav. Ass’n, 879 F.2d 459, 467 (9th

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Cir. 1989).

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racial minority; (2) defendant intended to discriminate based on

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race; and (3) the discrimination concerned an activity

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enumerated in the statute. See Keum v. Virgin Am. Inc., 781 F.

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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

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1

Lewis claims all defendants violated his § 1981 rights

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because their “deliberate maltreatment ... flowed from and came

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about because of [their] ingrained racial animus towards him

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because he is a Black Man.”

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Lewis alleges “no facts related to the making or enforcement of

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contracts” nor facts “supporting his conclusion of ‘racial

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animus’ or discrimination.”

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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.

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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

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any other racist epithet,” but Lewis also “derives his charge of

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racial animus from his overwhelming moral certainty, fortified

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by his natural, super-alert perception of words, and eyes, and

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tone of voice and other body language, that he never in life

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would have been dealt with as he was by these officers ... if he

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were White.

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Lewis, racial animus reads “as a veritable presumption.”

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Such legally unsupported arguments are insufficient to overcome

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Khalfan’s motion to dismiss this claim against him.

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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

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not allege a policy or custom as the moving force behind any

25

alleged violation.

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liable under § 1981, see Jett v. Dallas Indep. Sch. Dist., 491

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U.S. 701, 735-36 (1989), the Court dismisses Lewis’s ninth cause

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of action against City.

Because municipalities cannot be vicariously

The Court finds that further amendment
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1

is not necessarily futile and, therefore, dismisses this claim

2

without prejudice.

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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

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“apparently racist” because he is a “Black Man” and they

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committed an unprovoked, vicious attack on him.

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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

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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

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alleged racial animus.

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CAL. CIV. CODE § 51.7 (West 2015).

Section 51(b)

Mot. at 7-8.

Khalfan and City are correct.

For the same reasons the

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Court found that Lewis insufficiently alleged racial animus to

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support his § 1981 claim, the Court finds that Lewis has

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inadequately alleged racial animus here.

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And, because Lewis fails to state a claim against Khalfan, Lewis

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also fails to state one under a vicarious liability theory

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against City.

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fourth cause of action.

See supra Part II.C.

The Court dismisses without prejudice Lewis’s

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E.

Punitive Damages

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Municipalities are immune from punitive damages under

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§§ 1983 and 1981.

See City of Newport v. Fact Concerts, Inc.,

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453 U.S. 247, 271 (1981).

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746 F.2d 1205, 1270 (7th Cir. 1984).

See also Bell v. City of Milwaukee,

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California law also

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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

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5
6

III.

ORDER

For the reasons set forth above, the Court GRANTS in part

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and DENIES in part City and Khalfan’s Motion to Dismiss as

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follows:

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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

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action is GRANTED WITHOUT PREJUDICE as to City to the extent it

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is brought under a due process theory; GRANTED WITH PREJUDICE as

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to City and Khalfan to the extent it is brought under an equal

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protection theory; and DENIED as to Khalfan to the extent it is

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brought under a due process theory.

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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;
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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.

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If Lewis wants to amend his fourth cause of action against

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City and Khalfan, his sixth cause of action under a due process

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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

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may be included in the second amended complaint.

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responsive pleadings are due within twenty days thereafter.

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Lewis elects not to amend his FAC, the case will proceed on the

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remaining claims, and Khalfan and City shall file their answer to

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the FAC within thirty days from the date of this Order.

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IT IS SO ORDERED.
Dated:

February 15, 2017

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Defendants’
If