Porter v. Munoz et al

Filing 13

ORDER signed by District Judge Leslie E. Kobayashi on 1/20/17 ORDERING that defendants' 7 Motion to Dismiss and to Strike is GRANTED IN PART AND DENIED IN PART. Plaintiff is GRANTED leave to file an amended complaint by 3/21/2017. (Kastilahn, A)

Download PDF
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) vs. ) ) ) SERGEANT MUNOZ in his individual capacity, DOES 1- ) ) 10 in their individual capacities, CITY OF DAVIS ) POLICE DEPARTMENT, CITY OF ) DAVIS, ) ) ) Defendants. _____________________________ ) LASONJA PORTER, 20 21 22 23 24 2:16-CV-01702 LEK ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND TO STRIKE On October 14, 2016, Defendants Sergeant Munoz and the 25 City of Davis1 (“the City,” collectively “Defendants”) filed 26 their Motion to Dismiss and to Strike (“Motion”). 27 Plaintiff Lasonja Porter (“Plaintiff”) filed her memorandum in 28 opposition on October 28, 2016, and Defendants filed their reply 29 on November 10, 2016. 30 matter suitable for disposition without a hearing pursuant to 31 L.R. 230(g) of the Local Rules of the United States District 32 Court for the Eastern District of California (“Local Rules”). 33 After careful consideration of the Motion, supporting and 34 35 36 37 1 [Dkt. nos. 9, 11.] [Dkt. no. 7.] The Court finds this Sergeant Munoz is named in his individual capacity, and the City is also named as the City of Davis Police Department. [Pltf.’s Complaint for Damages (“Complaint”), filed 7/22/16 (dkt. no. 1), at 2-3.] 1 opposing memoranda, and the relevant legal authority, Defendants’ 2 Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the 3 reasons set forth below. 4 except that this Court DENIES Defendants’ request that the 5 dismissal of Count IV be with prejudice. The Motion is GRANTED in all respects, BACKGROUND 6 7 The instant case arises from a probation search that 8 Sergeant Munoz – who Plaintiff had two traumatic previous 9 encounters with – and several other police officers executed at 10 her apartment on February 26, 2016. 11 probation at the time, but only probation officers had conducted 12 his previous probation searches. 13 Plaintiff informed the police officers that her shoulder was very 14 tender because of an injury and that her mobility was limited. 15 After Sergeant Munoz and other officers entered the apartment, 16 Plaintiff attempted to go to her bedroom to retrieve her high 17 blood pressure medication because she was feeling overwhelmed by 18 the incident. 19 bedroom, Sergeant Munoz “grabbed and tugged on her injured left 20 shoulder,” causing her to suffer unbearable pain and extreme 21 anxiety. 22 Her son Cairo was on According to the Complaint, [Complaint at 3-4.] As she was heading to her [Id. at 4.] Sergeant Munoz asked Plaintiff where Cairo was, and she 23 responded that he was not at home. 24 was Cairo’s. He then asked her which room Although Plaintiff identified Cairo’s bedroom, 2 1 Sergeant Munoz searched the other bedrooms over Plaintiff’s 2 objection before finally searching Cairo’s bedroom. 3 Sergeant Munoz and other officers were searching Cairo’s room, 4 Cairo and his grandmother returned home. 5 the search of Cairo’s room to confront Cairo. 6 they were looking for a person named Julio. 7 had not seen Julio in years because the terms of his probation 8 prohibited such contact. Sergeant Munoz and the other officers 9 then left the apartment. Cairo was never restrained while the While Officer Munoz abandoned He told Cairo that Cairo said that he 10 officers were there, nor did the officers search him. 11 states that the officers did not offer her medical assistance or 12 attempt to obtain medical assistance for her before they left. 13 Plaintiff promptly sought medical attention for her left 14 shoulder. 15 Plaintiff [Id. at 4-5.] The Complaint alleges the following claims: a 42 U.S.C. 16 § 1983 claim against Sergeant Munoz alleging that his 17 unreasonable use of force violated Plaintiff’s Fourteenth 18 Amendment right to substantive due process (“Count I”); a § 1983 19 claim against Sergeant Munoz alleging that the unreasonable 20 search violated Plaintiff’s Fourth Amendment and Fourteenth 21 Amendment rights (“Count II”); a negligence claim against 22 Defendants based on bodily injury, pursuant to California 23 Government Code § 815.2 (“Count III”); a negligence claim against 24 Defendants based on the illegal search, pursuant to § 815.2 3 1 (“Count IV”); a negligent infliction of emotional distress 2 (“NIED”) claim against Sergeant Munoz (“Count V”); and an 3 intentional infliction of emotional distress (“IIED”) claim 4 against Sergeant Munoz (“Count VI”). 5 following relief: general, compensatory, and punitive damages; 6 interest on economic damages; lost earnings; and attorney’s fees 7 and costs. 8 9 The Complaint seeks the In the instant Motion, Defendants ask this Court to dismiss Counts I, III, IV, and V pursuant to Fed. R. Civ. P. 10 12(b)(6) and to strike the references to the Fourteenth Amendment 11 in Count II pursuant to Fed. R. Civ. P. 12(f). 12 not construe the Motion as seeking either the dismissal of the 13 portion of Count II based on the Fourth Amendment or the 14 dismissal of Count VI. DISCUSSION 15 16 17 This Court does I. Counts I and II Defendants argue that Count I fails to state a claim 18 upon which relief can be granted because an excessive force claim 19 must be brought pursuant to the Fourth Amendment, not the 20 Fourteenth Amendment. 21 Court should strike the allegations regarding the Fourteenth 22 Amendment in Count II because an unreasonable search claim is 23 properly analyzed under the Fourth Amendment. 24 essentially concedes these arguments, but she argues that this Similarly, Defendants argue that this 4 Plaintiff 1 Court should grant her leave to amend to correct the deficiencies 2 in Counts I and II. 3 Plaintiff is entitled to the opportunity to cure the defects in 4 these claims by amendment. 5 1:15-cv-01754-LJO-EPG-PC, 2016 WL 6494705, at *3 (E.D. Cal. 6 Nov. 1, 2016) (“Whether dismissal is with or without prejudice 7 will depend upon whether it is possible for Plaintiff to cure any 8 defects.” (citing Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 9 1107–08 (9th Cir. 2003) (collecting cases))), report and 10 [Mem. in Opp. at 4.] This Court agrees that See Rodriguez v. Brown, recommendation adopted, 2016 WL 7104173 (E.D. Cal. Dec. 6, 2016). 11 This Court therefore GRANTS Defendants’ Motion insofar 12 as this Court DISMISSES Count I WITHOUT PREJUDICE and STRIKES the 13 portion of Count II based on the Fourteenth Amendment. 14 II. 15 Count III Defendants argue that: Plaintiff has not pled 16 sufficient allegations to support her negligence claim based on 17 bodily injury; and the factual allegations of Count III appear to 18 state a battery claim instead of a negligence claim. 19 district court has stated: 20 21 22 23 24 25 26 27 28 29 This “Under California law, ‘[t]he elements of negligence are: (1) defendant’s obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss (damages).’” Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (quoting McGarry 5 1 2 3 4 v. Sax, 158 Cal. App. 4th 983, 994, 70 Cal. Rptr. 3d 519 (2008) (internal quotations omitted)). Stoops v. Sherman, Case No. 1:16-cv-01026-AWI-SAB(PC), 2017 WL 5 56666, at *4 (E.D. Cal. Jan. 4, 2017). Count III alleges that: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 As a proximate result of the offensive and harmful touching of SERGEANT MUNOZ, plaintiff was hurt and injured in her health, strength, and activity, sustaining injury to her body and shock and injury to her nervous system and person, all of which injuries have caused, and continue to cause, PLAINTIFF great mental, physical and nervous pain and suffering. Plaintiff is informed and believes and thereon alleges that such injuries will result in some permanent disability to her. As a result of such injuries, plaintiff has suffered general damages. [Complaint at 8 (emphases in original).] 20 that she has incurred, and will continue to incur, medical 21 expenses and other related expenses, and that her earning 22 capacity has been impaired. 23 cause and damages. 24 Plaintiff also alleges Thus, Plaintiff has pled proximate However, Plaintiff has not sufficiently pled duty and 25 breach of duty. 26 grabbed her injured shoulder even though she “was not the subject 27 of the search and was not posing a threat to the safety of the 28 officers or to the public,” and that he and the other officers 29 “gave no verbal warning or instruction prior to the physical 30 contact.” 31 that Sergeant Munoz owed Plaintiff a duty of care during the 32 execution of the probation search and that he breached the duty. [Id.] The Complaint alleges that Sergeant Munoz These allegations are not sufficient to pled 6 1 Further, Count III does not identify the basis for the City’s 2 liability, except to allege that Sergeant Munoz “acted within the 3 course and scope of his employment.” 4 [Id.] This Court also agrees with Defendants that, although 5 Plaintiff titled Count III as a negligence claim, Count III’s 6 factual allegations may be more consistent with a battery claim. 7 This district court has stated: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Robles v. Agreserves, Inc., 158 F. Supp. 3d 952, 985 (E.D. Cal. 24 2016) (some citations omitted). 25 A civil battery is “an offensive and intentional touching without the victim’s consent.” Kaplan v. Mamelak, 162 Cal. App.4th 637, 645, 75 Cal. Rptr. 3d 861 (2008). The elements of a civil battery under California law are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching. So v. Shin, 212 Cal. App. 4th 652, 669, 151 Cal. Rptr. 3d 257 (2013). For these reasons, this Court CONCLUDES that Count III 26 fails to state a plausible negligence claim against Defendants. 27 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a 28 motion to dismiss, a complaint must contain sufficient factual 29 matter, accepted as true, to ‘state a claim to relief that is 30 plausible on its face.’” (quoting Bell Atl. Corp. v. Twombly, 550 31 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007))). 32 Court therefore GRANTS Defendants’ Motion insofar as this Court 7 This 1 DISMISSES Count III. 2 this Court CONCLUDES that is possible for Plaintiff to cure the 3 defects in Count III by amendment. 4 III. Count IV 5 The dismissal is WITHOUT PREJUDICE because Similar to Count III, Count IV fails to plead duty and 6 breach of duty. 7 fails to state a plausible negligence claim against Defendants. 8 9 This Court therefore CONCLUDES that Count IV Defendants argue that this Court should dismiss Count IV with prejudice because the claim essentially alleges 10 that Sergeant Munoz negligently violated Plaintiff’s Fourth 11 Amendment right to be free from unreasonable searches, and “[i]t 12 is well-established that negligent acts do not incur 13 constitutional liability.” 14 Smith, 292 F.3d 1177, 1190 (9th Cir. 2002); Daniels v. Williams, 15 474 U.S. 327, 328 (1986)).] 16 Defendants’ characterization of Count IV. 17 Count IV as attempting to state an alternate theory of liability 18 regarding the allegedly illegal search, i.e., even if Sergeant 19 Munoz’s actions did not rise to the level of a constitutional 20 violation, they were negligent. 21 Defendants’ argument that Plaintiff cannot cure the defects in 22 Count IV by amendment. 23 24 [Reply at 3 (citing Billington v. This Court disagrees with This Court construes This Court therefore rejects Defendants’ Motion is GRANTED IN PART AND DENIED IN PART as to Count IV. The Motion is GRANTED insofar as Count IV 8 1 is DISMISSED, and the Motion is DENIED insofar as the dismissal 2 of Count IV is WITHOUT PREJUDICE. 3 IV. 4 Count V Defendants allege that Plaintiff’s NIED claim fails to 5 state a plausible claim for relief because: 1) the Complaint does 6 not plead sufficient facts to support a NIED claim; 2) even if 7 Plaintiff has sufficient facts to support an NIED claim against 8 Sergeant Munoz, she has not pled the basis for the City’s 9 liability; and 3) Plaintiff’s NIED claim is redundant of her 10 negligence claims because she alleges that she suffered physical 11 injury and seeks emotional distress damages as parasitic damages. 12 This Court agrees with Defendants’ third argument, and therefore 13 does not need to address Defendants’ first and second arguments. 14 This district court has stated: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 [T]here is no independent tort of negligent infliction of emotional distress under California law. (Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 (1992) (“We have repeatedly recognized that ‘[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.’”) (quoting Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal. 3d 583, 588 (1989))). Negligent infliction of emotional distress is instead a subset of negligence that extends the ability to recover damages to indirect victims who, while not suffering physical injury as the result of a tortfeasor’s acts, nonetheless suffer severe emotional distress. See, e.g., Dillon v. Legg, 68 Cal. 2d 728, 747–48 (1968) (allowing mother to pursue damages for emotional trauma resulting from witnessing the death of her child). However, when emotional distress accompanies physical injury, negligent infliction of emotional distress is not the appropriate cause 9 of action for seeking recovery of the resulting damages. Rather, when a plaintiff is physically injured and suffers emotional distress as a result, damages stemming from the emotional distress are treated as a “parasitic item” to be recovered through a claim of ordinary negligence. Thing v. La Chusa, 48 Cal. 3d 644, 651 (1989); see also Summers v. Delta Airlines, Inc., 805 F. Supp. 2d 874, 887 (N.D. Cal. 2011) (“Under California law, it is well-settled that in ordinary negligence actions for physical injury, recovery for emotional distress caused by that injury is available as an item of parasitic damages.”) (quotation omitted). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Morse v. Cty. of Merced, No. 1:16-cv-00142-DAD-SKO, 2016 WL 17 3254034, at *12 (E.D. Cal. June 13, 2016) (some alterations in 18 Morse) (emphasis added). 19 Because Plaintiff asserts that she suffered physical 20 injury and emotional distress as a result of the allegedly 21 negligent conduct in this case, this Court CONCLUDES that 22 Plaintiff’s independent NIED claim fails to state a plausible 23 claim for relief. 24 Plaintiff must seek her damages for emotional distress as a 25 component of her damages in her negligence claims. 26 not possible for Plaintiff to cure the defect in her independent 27 NIED claim. 28 Count V WITH PREJUDICE. 29 is with prejudice insofar as Plaintiff cannot include an 30 independent NIED claim in her amended complaint, but without 31 // Instead of asserting a separate NIED claim, Thus, it is This Court GRANTS Defendants’ Motion and DISMISSES This Court emphasizes that the dismissal 10 1 prejudice to the inclusion of a request for emotional distress 2 damages as part of her negligence claims. CONCLUSION 3 4 On the basis of the foregoing, Defendants’ Motion to 5 Dismiss and to Strike, filed October 14, 2016, is HEREBY GRANTED 6 IN PART AND DENIED IN PART. 7 Counts I and III are HEREBY DISMISSED WITHOUT PREJUDICE; the 8 allegations regarding the Fourteenth Amendment in Count II are 9 HEREBY STRICKEN; Count IV is HEREBY DISMISSED; and Count V is The Motion is GRANTED insofar as: 10 HEREBY DISMISSED WITH PREJUDICE. 11 Defendants’ request to dismiss Count IV with prejudice. 12 dismissal of Count IV is WITHOUT PREJUDICE. 13 The Motion is DENIED as to The The Court GRANTS Plaintiff leave to file an amended 14 complaint by March 21, 2017. 15 amended complaint by March 21, 2017, this case will proceed on 16 the remaining portions of the original Complaint – the portion of 17 Count II based on the Fourth Amendment and Count VI. If Plaintiff fails to file an 18 IT IS SO ORDERED. 19 20 21 22 23 24 25 26 27 28 29 DATED AT HONOLULU, HAWAII, January 20, 2017. /s/ Leslie E. Kobayashi Leslie E. Kobayashi United States District Judge LASONJA PORTER VS. SERGEANT MUNOZ, ETC., ET AL; 2:16-CV-01702 LEK 11

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?