Brasley et al v. City of Stockton et al

Filing 17

ORDER signed by District Judge John A. Mendez on 2/12/2021 GRANTING 6 Motion to Dismiss with prejudice. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN BRASLEY, et al.,

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No.

2:20-cv-01967-JAM-CKD

Plaintiffs,
v.

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

CITY OF STOCKTON, et al.,
Defendants.

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This Court has previously stated that it “does not take

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lightly that ‘[o]ur country is now in the midst of a serious

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examination of the violations of due process and equal

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protection rights of Black Americans’” and has recognized that

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“the burden of aggressive and intrusive police action falls

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disproportionately on African-American . . . males.”

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City of Stockton, 2020 WL 5763763 at *6 (E.D. Cal. Sept. 28,

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2020) (internal citations omitted).

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acknowledged in Weaver that what may shock the Country’s

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conscience – “to have Black Americans singularly threatened with

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grave bodily injury . . . [by] police who are charged to protect

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and serve all Americans” – does not always shock the conscience
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Weaver v.

Yet, the Court also

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by substantive due process standards.

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Id.

This Court is bound by the demanding legal standard for

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substantive due process claims.

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with a motion to dismiss claims based on substantive due process

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violations, as it was in Weaver, and is now in the present

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action against the City of Stockton, the Court must apply this

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demanding standard.

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Accordingly, when presented

Before the Court is the City of Stockton, Patrick Frondo,
Abel Hinojos, and Daniel Burke’s(“Defendants”) Motion to Dismiss

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Plaintiffs’ second claim for loss of familial association in

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violation of the Fourteenth Amendment.

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Brasley, Antonia Brasley, Preston Gregory, Tomia Gayles Sagote,

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Herman Gayles, Kevin Brasley Jr., Antonio Brasley, Kenneth

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Brasley, Isaac Brasley, Antevin Brasley, Mary Bryant, and

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Kevousie Brasley (“Plaintiffs”) opposed.

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Defendants replied.

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forth below, the Court GRANTS Defendants’ Motion to Dismiss.1

Reply, ECF No. 12.

Mot., ECF No. 6.

Kevin

Opp’n, ECF No. 11.
For the reasons set

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I.

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BACKGROUND

On September 20, 2019, the Stockton Police Department

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received a 911 call about a domestic violence incident at the

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apartment complex where Plaintiffs Kevin Brasley, his wife

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Antonia, and several of their children lived.

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ECF No. 1.

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was: black male around 30 years old, about 5’4 and 135 pounds,

Compl. ¶¶ 11, 12,

The description of the suspect given to the officers

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for February 9, 2021.
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dark complexion, bald and clean-shaven, and wearing a blue shirt.

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Id. ¶ 13.

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investigate.

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complex drew a crowd of twenty to thirty spectators.

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speaking with the victim, the officers confirmed the suspect’s

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physical description.

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had fled the complex, the officers did not make an arrest and

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left.

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the officers were again dispatched.

Officers Frondo and Hinojos were dispatched to
Id. ¶ 14.

Id. ¶ 16.

The officers’ presence at the apartment

Id. ¶ 15.

Id.

After

However, because the suspect

When the suspect returned shortly thereafter,
Id. ¶¶ 16, 17.

Among the

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crowd still gathered outside were Plaintiffs Kevin Brasley, his

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wife, and their sons, Isaac, Kenneth, Antevin, and Antonio.

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¶ 19.

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Id.

When Officer Frondo exited from his patrol vehicle, he

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singled out Kevin Brasley and ordered him to walk over to the

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vehicle.

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Brasley did not match the description of the suspect; at the

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time, Mr. Brasley was 49 years old, about 5’9 and 190 pounds,

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with gray hair and gray facial hair, a light complexion, and

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wearing a black shirt.

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Id. ¶¶ 21, 23.

Other than being a black male, Mr.

Id. ¶ 22.

Mr. Brasley complied with Frondo’s orders, putting his hands

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on the hood of the patrol car and spreading his feet.

Id. ¶¶ 23,

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and fell to the ground, pulling Brasley down to the ground with

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him.

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his body covering Brasley’s face and preventing him from

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breathing.

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Brasley raised his hands in the air to show he was not resisting

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or posing any threat and turned his head to the side in order to

As Frondo was searching Mr. Brasley’s body, Frondo tripped

Id. ¶¶ 25, 26.

Id. ¶ 27.

Frondo rolled himself on top of Brasley,

When Frondo did not stand up right away,

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breathe.

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where Brasley and Frondo remained entangled on the ground and hit

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Mr. Brasley’s raised arm with a baton.

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strike broke a bone in Mr. Brasley’s left arm.

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Id. ¶¶ 28, 29.

Officer Hinojos headed quickly over to

Id. ¶ 29.

The baton

Id.

Meanwhile, Officer Burke had arrived, as spectators were

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yelling that the police had the wrong person.

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The victim of the domestic violence incident specifically told

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Burke that the officers had the “wrong man,” but Burke did

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nothing.

Id. ¶ 36.

Id. ¶¶ 30, 34-36.

Brasley was arrested, id. ¶ 37, taken first

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to the San Joaquin General Hospital, id. ¶¶ 39-40, then to the

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San Joaquin County Jail where he was held overnight, id. ¶¶ 41-

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49.

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Kevin Brasley now brings this Section 1983 action on behalf

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of himself, his mother, his wife, and his nine children.

See

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Compl.

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present Motion concerns only the second: a Fourteenth Amendment

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Substantive Due Process Claim for Familial Association brought by

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all Plaintiffs against Officers Burke, Frondo, and Hinojos.

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Compl. ¶¶ 58-66.

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action, and in turn dismiss Plaintiffs Mary Bryant, Preston

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Gregory, Tomia Gayles Sagote, Herman Gayles, Kevin Brasley Jr.,

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and Kevousie Brasley, from this action.

While the complaint contains nine causes of action, the

Defendants move to dismiss the second cause of

Mot. at 9.

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II.

OPINION

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A.

Legal Standard

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Federal Rule of Civil Procedure 8(a)(2) requires “a short

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and plain statement of the claim showing that the pleader is

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entitled to relief.”

Fed. R. Civ. Proc. 8(a)(2).
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Courts must

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dismiss a suit if the plaintiff fails to “state a claim upon

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which relief can be granted.”

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defeat a Rule 12(b)(6) motion to dismiss, a plaintiff must

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“plead enough facts to state a claim to relief that is plausible

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on its face.”

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(2007).

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that allows the court to draw a reasonable inference that the

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defendant is liable for the misconduct alleged.”

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Iqbal, 556 U.S. 662, 678 (2009).

Fed. R. Civ. Proc. 12(b)(6).

To

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

This plausibility standard requires “factual content

Ashcroft v.

“At this stage, the Court

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“must accept as true all of the allegations contained in a

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complaint.”

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conclusion couched as a factual allegation.”

Id.

But it need not “accept as true a legal
Id.

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B.

Analysis

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As a threshold matter, Defendants characterize their leading

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argument as one about standing.

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However, upon review of the “standing” sections of Defendants’

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Motion and Reply, the Court finds that Defendants’ arguments

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though couched as standing arguments, are more properly

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considered as failure to state a claim arguments. For instance,

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Defendants argue in the “standing” section of the Motion: “there

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has been no deprivation of life, liberty or property necessary to

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state a valid substantive due process claim.” Mot. at 5.

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(emphasis added).

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consider Defendants’ “standing” arguments as part of the 12(b)(6)

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analysis below.

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Mot. at 5; Reply at 2-3.

Accordingly, the Court finds it appropriate to

Defendants argue that Plaintiffs fail to state a Fourteenth

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Amendment substantive due process claim for loss of familial

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association and thus this claim must be dismissed.
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Mot. at 5-8;

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Reply at 2-3.

Plaintiffs insist that as the wife, mother, and

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children of Kevin Brasley, respectively, Antonia Brasley, Mary

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Bryant, Preston Gregory, Tomia Gayles Sagote, Herman Gayles,

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Kevin Brasley Jr., Antonio Brasley, Kenneth Brasley, Isaac

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Brasley, Antevin Brasley, and Kevousie Brasley have a

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constitutionally protected liberty interest in the companionship

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and society of their husband, son, and father.

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They allege that Defendants violated this interest, rendering

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Kevin Brasley “physically and emotionally unable to provide the

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same level or quality of companionship, comfort, and society to

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his mother and wife and children than before he was injured.”

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Compl. ¶ 64.

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association Plaintiffs have pled are: (1) Kevin Brasley has been

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“physically unable to assume his pre-injury role in executing and

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leading the family cookouts like the family enjoyed 2-3 times per

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month before he was injured”; and (2) Kevin Brasley has been

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“unable to take his sons on their nearly annual fishing trip, or

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help them work on their homes and cars, or get out of the house

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for birthday parties and holiday get togethers.”

Opp’n at 6-7.

The two specific examples of loss of familial

Id.

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Under the Fourteenth Amendment, official conduct that

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“shocks the conscience” in depriving close family members of a

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liberty interest in the companionship and society of a family

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member is cognizable as a violation of due process.

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Torres, 610 F.3d 546, 554 (9th Cir. 2010) (internal quotations

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and citations omitted).

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determining whether [the officer’s conduct] shocks the

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conscience, the court must first ask whether the circumstances

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are such that actual deliberation [by the officer] is practical.

Wilkinson v.

The Ninth Circuit has instructed: “In

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Where actual deliberation is practical, then an officer's

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‘deliberate indifference’ may suffice to shock the conscience.

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On the other hand, where a law enforcement officer makes a snap

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judgment because of an escalating situation, his conduct may only

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be found to shock the conscience if he acts with a purpose to

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harm unrelated to legitimate law enforcement objectives.”

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see also Estate of Ozuna v. Cty. of Stanislaus, 392 F.Supp.3d

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1162, 1176 (E.D. Cal. 2019).

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Id.;

The parties dispute which of these two standards, deliberate

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indifference or purpose to harm, applies.

Opp’n at 4-5; Reply at

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3-4.

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dispute because under either standard, Plaintiffs have not

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alleged facts from which it could plausibly find that Defendants’

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actions against Kevin Brasley shocked the conscience.

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Plaintiff’s allegations – even the most egregious ones (1) that

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Officer Frondo singled Mr. Brasley out despite the fact he did

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not match the description of the suspect other than generally

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being a black male, Compl. ¶¶ 21-23; (2) that Officer Hinojos

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swung a baton and broke Mr. Brasley’s arm despite the fact he was

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not resisting and merely trying to breathe as Officer Frondo

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remained on top of him, id. ¶¶ 27-29; and (3) that Defendants

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arrested Mr. Brasley despite being informed by many onlookers,

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including the victim, that they had the wrong guy, id. ¶¶ 30, 34-

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36 – simply do not rise to the level of a substantive due process

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violation under the settled caselaw.

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allegations regarding the loss of familial association, id. ¶ 64,

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come up short.

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as much.

However, the Court finds it unnecessary to resolve this

Here,

Likewise, Plaintiffs’

Indeed, the authority Plaintiffs cite to confirms

Opp’n at 7 (citing to Lee v. City of Los Angeles, 250
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F.3d 668 (9th Cir. 2001)).

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arrested plaintiff-son, who was severely mentally disabled such

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that his plaintiff-mother had been appointed as his conservator,

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then proceeded to mistakenly identify him as a fugitive wanted by

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the New York Police and extradite him to New York where he was

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wrongfully incarcerated for two years.

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mother spent those two years searching for him.

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Circuit found these allegations sufficient to state a loss of

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familial association claim.

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In Lee, Los Angeles Police officers

Id. at 677-678.
Id.

His

The Ninth

Id. at 686.

The Court agrees with Defendants that the facts of Lee are

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“oceans apart” from the allegations here.

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unlike in Lee, there is no allegation that Mr. Brasley had a

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mental incapacity that Defendants ignored, no allegation that Mr.

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Brasley was wrongfully incarcerated for two years, and no

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allegation that his family members did not know where he was for

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two years and were deprived of his companionship for that period

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of time.

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Joaquin County Jail for one night.

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Court takes as true the allegation Mr. Brasley is now “physically

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and emotionally unable to provide the same level or quality of

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companionship, comfort, and society to his mother, wife and

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children than before he was injured,” id. ¶ 64, this is simply

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not enough to state a claim, even under Plaintiffs’ own cited

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caselaw.

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standards are demanding and do not impose liability “whenever

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someone cloaked with state authority causes harm.”

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WL 5763763 at *6 (internal citations omitted).

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Reply at 3.

Here,

Rather, Mr. Brasley was held in custody at the San
Compl. ¶¶ 41-49.

While the

It bears repeating that substantive due process

Weaver, 2020

Because the caselaw requires far more than what Plaintiff
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has alleged here, the Court DISMISSES Plaintiffs’ Fourteenth

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Amendment familial association claim.

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C.

Leave to Amend

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The Court need not grant leave to amend where amendment

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would be futile.

Deveraturda v. Globe Aviation Sec. Servs., 454

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F.3d 1043, 1049 (9th Cir. 2006).

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been alleged by Plaintiffs here is far from what the caselaw

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requires to state a claim.

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did not proffer any facts that might lead the Court to believe

As discussed above, what has

Further, in opposition, Plaintiffs

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Plaintiffs could add allegations to avoid dismissal on 12(b)(6)

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grounds.

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would be futile and DISMISSES Plaintiffs’ second claim with

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prejudice.

See Opp’n.

Accordingly, the Court finds amendment

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III.

ORDER

For the reasons set forth above, the Court GRANTS WITH
PREJUDICE Defendants’ Motion to Dismiss.
IT IS SO ORDERED.
Dated: February 12, 2021

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