Libby v. City of Gridley et al

Filing 49

ORDER signed by District Judge John A. Mendez on 11/16/2021 DENYING 35 Motion to Strike. GRANTING in PART and DENYING in PART 32 Motion to Dismiss. Plaintiff' amended complaint must be filed within 20 of this Order. Defendants' responsive pleading is due 20 days thereafter.(Reader, L)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MICHAEL A. LIBBY, 11 No. 2:21-cv-00017-JAM-AC Plaintiff, 12 v. 13 CITY OF GRIDLEY, et al., 14 Defendants. ORDER DENYING PLAINTIFF’S MOTION TO STRIKE AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 15 Michael A. Libby (“Plaintiff”) brings this Section 1983 16 17 action against the City of Gridley, the Gridley Police 18 Department, Gridley Police Chief Rodney W. Harr, Gridley Police 19 Sergeant Farr, and Gridley Police Officer Pasley (“Defendants”). 20 First Amended Complaint (“FAC”) at 2, ECF No. 21. 21 the Court are two motions: Defendants’ motion to dismiss, Defs.’ 22 Mot., ECF No. 32, and Plaintiff’s motion to strike, Pl.’s Mot., 23 ECF No. 35.1 24 ECF No. 40. 25 Defendants also opposed Plaintiff’s Motion. Plaintiff opposed Defendants’ Motion. Defendants replied. Pending before Pl.’s Opp’n, Defs.’ Reply, ECF No. 42. Defs.’ Opp’n, ECF 26 27 28 These motions were determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearings were scheduled for September 14, 2021. 1 1 1 No. 39. Plaintiff replied. Pl.’s Reply, ECF No. 41. After 2 consideration of the parties’ briefing and relevant legal 3 authority, the Court grants in part and denies in part 4 Defendants’ motion to dismiss and denies Plaintiff’s motion to 5 strike. 6 7 8 9 I. BACKGROUND The parties are intimately familiar with the factual background of this case as previously set forth in the operative 10 complaint, the parties’ briefings, and the Court’s prior order. 11 See Order Granting Mot. to Dismiss (“Prior Order”) at 1-3, ECF 12 No. 20. 13 These material facts are not restated here. On May 17, 2021, the Court granted Defendants’ motion to 14 dismiss. See generally Prior Order. 15 filed an amended complaint, adding Sergeant Farr as a named 16 Defendant. 17 Defs.’ Mot. 18 Answ., ECF No. 31. 19 defenses asserted by Defendants in their answer. See FAC. On June 3, 2021, Plaintiff Defendants again move to dismiss. See On June 30, 2021, Defendants filed an answer. See Plaintiffs move to strike affirmative See Pl.’s Mot. 20 21 II. OPINION 22 A. Plaintiff’s Motion to Strike 23 A Rule 12(f) motion asks the court to strike any 24 “insufficient defense” from an answer. Fed. R. Civ. P. 12(f). 25 An affirmative defense may be insufficient as a matter of law or 26 as a matter of pleading. 27 2:18-cv-02765-JAM-CKD, 398 F.Supp.3d 715, 728 (E.D. Cal. 28 2019)(internal citations omitted). Butcher v. City of Marysville, No. 2 Motions to strike affirmative 1 defenses are “regarded with disfavor because of the limited 2 importance . . . and because they are often used as a delaying 3 tactic.” 4 KJN, 2021 WL 4777014, at *1 (E.D. Cal. Oct. 13, 2021) (internal 5 citations omitted). 6 of prejudice by the moving party before granting the requested 7 relief.” 8 to strike may therefore be denied even though the offending 9 matter was literally within one or more of the categories set 10 11 Brooks v. Vitamin World USA Corp., No. 20-cv-01485-MCE- Id. Accordingly, “courts often require a showing “Where no such prejudice is demonstrated, motions forth in Rule 12(f).” Id. Here, Plaintiff moves to strike Defendant’s affirmative 12 defenses. See generally Pl.’s Mot. 13 affirmative defenses are subject to the plausibility 14 pleading standard. 15 been squarely rejected by this Court, see Xiong v. G4S 16 Secure Solutions (USA) Inc., No. 2:19-cv-00508-JAM-EFB, 2019 17 WL 3817645, at *1 (E.D. Cal. Aug. 14, 2019) (“Consistent 18 with its prior decisions, this Court declines to apply the 19 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and 20 Ashcroft v. Iqbal, 556 U.S. 662 (2009) pleading standards to 21 affirmative defenses.”), and by other Eastern District 22 courts, see e.g. Vitamin World USA Corp., 2021 WL 4777014, 23 at *2 (“District courts in this circuit were previously 24 split on whether the heightened pleading standard announced 25 [in Twombly and Iqbal] applied to affirmative 26 defenses . . . the Ninth Circuit, however, has resolved the 27 spilt in the district courts . . . accordingly, this Court 28 applies the ‘fair notice’ standard, and not the heightened Id. at 2-3. Plaintiff first argues This argument, however, has 3 1 pleading standard announced in Twombly and Iqbal when 2 evaluating motions to strike affirmative defenses.”). 3 Plaintiff’s first argument thus fails. 4 Plaintiff next argues that he is not required to show 5 prejudice. Pl.’s Mot. at 8. This argument, too, has been 6 rejected by this Court, see Brooks v. Boiling Crab Franchise 7 Co. LLC, No. 2:20-cv-01390-JAM-CKD, ECF No. 12 (E.D. Cal. 8 Nov. 10, 2020) (denying plaintiff’s motion to strike 9 “because Plaintiff has failed to demonstrate any cognizable 10 prejudice”), by other Eastern District Courts, see e.g. 11 Vitamin World USA Corp., 2021 WL 4777014, at *1 (explaining 12 “courts often require a showing of prejudice by the moving 13 party before granting the requested relief”), and by other 14 district courts within the Ninth Circuit, see e.g. N.Y.C. 15 Emps.’ Ret. Sys. v. Berry, 667 F.Supp.2d 1121, 1128 (N.D. 16 Cal. 2009) (“Where the moving party cannot adequately 17 demonstrate . . . prejudice, courts frequently deny motions 18 to strike ‘even though the offending matter was literally 19 within one or more of the categories set forth in Rule 20 12(f).’”). 21 showing of prejudice is required. 22 demonstrated prejudice. 23 Reply. Thus, contrary to Plaintiff’s contention, a Plaintiff has not See Pl.’s Mot.; see also Pl.’s Accordingly, Plaintiff’s motion to strike is denied. 24 B. Defendants’ Motion to Dismiss 25 A Rule 12(b)(6) motion challenges the complaint as not 26 alleging sufficient facts to state a claim for relief. Fed. R. 27 Civ. P. 12(b)(6). 28 12(b)(6)], a complaint must contain sufficient factual matter, “To survive a motion to dismiss [under 4 1 accepted as true, to state a claim for relief that is plausible 2 on its face.” 3 (internal quotation marks and citation omitted). 4 “detailed factual allegations” are unnecessary, the complaint 5 must allege more than “[t]hreadbare recitals of the elements of 6 a cause of action, supported by mere conclusory statements.” 7 Id. 8 claim, the court generally accepts as true the allegations in 9 the complaint, construes the pleading in the light most Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) While In considering a motion to dismiss for failure to state a 10 favorable to the party opposing the motion, and resolves all 11 doubts in the pleader’s favor. 12 546 F.3d 580, 588 (9th Cir. 2008). 13 survive a motion to dismiss, the non-conclusory ‘factual 14 content,’ and reasonable inferences from that content, must be 15 plausibly suggestive of a claim entitling the plaintiff to 16 relief.” 17 2009). 18 Lazy Y Ranch Ltd. v. Behrens, “In sum, for a complaint to Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. Here, Defendants move to dismiss the claims against the 19 City of Gridley and the Gridley Police Department, see Defs.’ 20 Mot. at 3-5, as well as the claims against Chief Harr and 21 Sergeant Farr, see id. at 6-15. 22 1. Claims Against the City and Police Department 23 Specifically, Defendants City of Gridley and Gridley Police 24 Department seek to dismiss the fourth claim for violation of the 25 Rehabilitation Act (“Rehab Act”) and the fifth claim for 26 violation of the Americans with Disabilities Act (“ADA”). 27 Mot. at 3-6; Defs.’ Reply at 2-3. 28 these two claims for failure to allege disability with the 5 Defs.’ The Court previously dismissed 1 requisite factual specificity. 2 argue that the FAC still does not contain sufficient facts to 3 maintain these claims. 4 Prior Order at 5. Defendants Defs.’ Mot. at 1, 3-6. As explained in the Court’s prior order, courts analyze ADA 5 and Rehab Act claims together because they provide identical 6 remedies, procedures, and rights. 7 Tennyson v. Cty. of Sacramento, No. 2:19-cv-00429-KJM, 2020 WL 8 4059568, at *4 (E.D. Cal. July 20, 2020)). 9 under Section 504 of the Rehab Act, a plaintiff must allege: Prior Order at 4 (citing to To state a claim 10 “(1) he is an individual with a disability; (2) he is otherwise 11 qualified to receive the benefit; (3) he was denied the benefits 12 of the program solely by reason of his disability; and (4) the 13 program receives federal financial assistance.” 14 of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001) (internal 15 quotation marks and citations omitted). 16 Title II of the ADA, a plaintiff must allege that: “(1) he is a 17 qualified individual with a disability; (2) he was either 18 excluded from participation in or denied the benefits of a public 19 entity’s services, programs, or activities, or was otherwise 20 discriminated against by the public entity; and (3) such 21 exclusion, denial of benefits, or discrimination was by reason of 22 his disability.” 23 Duvall v. Cty. To state a claim under Id. The parties dispute whether Plaintiff’s allegations as to 24 the elements of disability and reasonable accommodation are 25 sufficient. 26 allege sufficient facts to demonstrate he was disabled, that 27 Defendants were aware of his disability, and that they failed to 28 accommodate him.”); Pl.’s Opp’n at 1-3. Defs.’ Mot. at 5 (“In sum, Plaintiff’s FAC fails to 6 As to disability, the 1 Court agrees with Plaintiff that he has added sufficient facts to 2 survive the motion to dismiss. 3 added the following allegations to the FAC: “Since 1995, 4 [Plaintiff] has struggled with a persistent and ongoing injury to 5 his left arm and shoulder, originating with a torn rotator cuff 6 he experienced when he was involved in a rollover vehicle 7 accident. 8 his injured arm, in order to remove scar tissue around the site 9 of the injury. Pl.’s Opp’n at 1-2. Plaintiff In 2006, [Plaintiff] underwent a ‘clean up’ surgery on In 2015, [Plaintiff] received a ‘total shoulder 10 replacement’ surgery at the Cleveland Shoulder Institute. 11 July 2020, [Plaintiff’s] employer placed him on ‘non-industrial 12 disability’ for six-months, due to his arm injury. 13 injured arm is a source of consistent soreness and nerve pain 14 which substantially limits his ability to perform manual tasks, 15 including lifting or putting pressure on the injured arm. 16 [Plaintiff’s] injured arm continuously causes him pain and 17 imposes limitations, including on the date giving rise to this 18 action, November 23, 2020.” 19 “identify more than the general nature of the disability” and are 20 therefore sufficient. 21 of Santa Clara, 136 F. Supp. 3d 1125, 1136 (N.D. Cal. 2015) 22 (“courts have generally required the party to plead the 23 disability with some factual specificity.”) 24 FAC ¶¶ 12-16. In [Plaintiff’s] These allegations Prior Order at 5; see also Bresaz v. Cnty. As to awareness of the disability and reasonable 25 accommodation, the Court again agrees with Plaintiff that there 26 is sufficient factual detail in the FAC to support his claim that 27 Defendants were aware of his disability and failed to reasonably 28 accommodate him. Pl.’s Opp’n at 2-3. 7 Plaintiff alleges that he 1 “informed [Officer Pasley] that he had a physical disability 2 caused by a previous shoulder surgery to his left arm which 3 required the site of the injury to be treated with care,” and 4 further that Officer Pasley “disregarded [Plaintiff’s] warning 5 concerning his physical disability” and instead “forcefully 6 grabbed hold of [Plaintiff’s] left arm” and “hyper-flexed [his] 7 left arm and shoulder, twisting his arms behind his back.” 8 ¶¶ 32-34, 115, 121. 9 Pasley and Sergeant Farr “refused to accommodate [his] injured FAC Additionally, Plaintiff alleges that Officer 10 arm, for example, by removing the handcuffs, by applying the 11 handcuffs in front rather than behind the body, or by loosening 12 the handcuffs.” 13 are insufficient, but do not provide any binding authority 14 supporting their position that more is required at this early 15 stage of the case. 16 citation to two out-of-circuit cases, see Defs.’ Reply at 2 17 (citing to Bartee v. Michelin N. AM., Inc., 374 F.3d 906, 916 18 (10th Cir. 2004) and E.E.O.C. v. C.R. England, Inc., 644 F.3d 19 1028 (10th Cir. 2011)) do not persuade the Court that more 20 factual detail is required. 21 Id. ¶ 46. Defendants contend these allegations See generally Defs.’ Mot. Defendants’ For these reasons, the Court denies Defendants’ motion as to 22 the fourth and fifth claims against the City of Gridley and the 23 Gridley Police Department. 24 25 26 2. Claims Against Chief Harr and Sergeant Farr a. First, Sixth, and Ninth Claims: False Arrest Sergeant Farr moves to dismiss Plaintiff’s first claim for 27 false arrest pursuant to 42 U.S.C. Section 1983; his sixth claim 28 for false arrest pursuant to Cal. Const., Art. I. Section 13; and 8 1 his ninth claim for false arrest/imprisonment. 2 8, 9-10; Defs.’ Reply at 3-4. 3 cannot be held liable because Officer Pasley arrested Plaintiff 4 not Sergeant Farr, further that the arrest was constitutional 5 because probable cause existed, and even if the arrest were 6 unconstitutional, Sergeant Farr was merely present and his 7 failure to intervene does not rise to the level of reckless or 8 callous indifference. 9 indicate the following: “Plaintiff refused to obey orders and was Id. Defs.’ Mot. at 6- Farr generally contends that he Farr maintains that the allegations 10 uncooperative. 11 Pasley was left with no choice but to arrest or let Plaintiff 12 return to the residence where he was no longer welcome. 13 Certainly, it was not illegal for Sergeant Farr to fail to 14 intervene on the arrest under these circumstances.” 15 at 10. 16 Due to Plaintiff’s refusal to cooperate, Officer Defs.’ Mot However, Farr ignores Plaintiff’s allegations indicating he 17 was a lawful guest at the residence where he was arrested, that 18 he was not committing any crime, and that despite this lawful 19 presence, the officers demanded he vacate the residence. 20 ¶¶ 17-18, 20-21, 28-29. 21 indicating Farr took actions beyond that of a mere bystander, 22 including that Farr met with the individual who called the 23 police, FAC ¶ 26, that he entered the home searching for 24 Plaintiff, id. ¶ 27, he found Plaintiff in the bedroom and asked 25 Plaintiff to leave, id. ¶ 28, and he told Plaintiff he would be 26 arrested if he did not leave the residence, id. ¶ 40. 27 of these allegations as true and drawing inferences in favor of 28 the non-moving party, the Court finds Plaintiff has plausibly FAC Further, he ignores the allegations 9 Taking all 1 alleged that Farr was an integral part of the interaction and not 2 merely a bystander. 3 295 (9th Cir. 1996)(explaining the integral participation theory 4 of liability); Hernandez v. Contra Costa County, Case No. 20-cv- 5 01183-AGT, 2020 WL 3078119, at *1-2 (N.D. Cal. June 10, 2020) 6 (denying motion to dismiss by supervising officers where “[the 7 supervising officers on scene] plausibly could have physically 8 intervened or verbally ordered their subordinates to stop.”). 9 Accordingly, Plaintiff has alleged sufficient facts to support See e.g. Chuman v. Wright, 76 F.3d 292, 294- 10 his first, sixth, and ninth claims against Sergeant Farr for 11 false arrest/imprisonment. 12 Nor does Farr’s argument that the sixth claim fails under 13 Katzberg v. Regents of Univ. of Cal., 29 Cal.4th 300 (2002), 14 alter the above analysis. 15 briefing as to whether there is a private right of action for 16 false arrest under Cal. Const., Art. I, Section 13 does not 17 establish this claim is foreclosed as a matter of law. 18 Estate of Osuna v. County of Stanislaus, 392 F.Supp.3d 1162, 19 1178-1179 (E.D. Cal. 2019) (finding defendant’s insufficient 20 briefing on the Katzberg analysis did not support dismissal of 21 plaintiff’s Cal. Const., Art. I, Section 13 claim); Shen v. 22 Albany Unified Sch. Dist., 3:17-CV-02478-JD, 2018 WL 4053482, at 23 *4 (N.D. Cal. Aug. 24, 2018) (“Defendants have not done 24 [Katzberg] justice by making what is effectively a passing 25 reference to it in their briefs, and the Court declines to take 26 it up in that underdeveloped form.”). 27 respond to Plaintiff’s legal arguments, see Pl.’s Opp’n at 9-10, 28 in support of the sixth claim being cognizable. Defs. Mot. at 7-8. 10 Defendants’ Accord Indeed, Defendants did not See Defs.’ 1 2 3 Reply. Thus, Defendants’ Katzberg argument fails. For these reasons, the Court denies Defendants’ motion as to the first, sixth, and ninth claims against Sergeant Farr. 4 5 b. Third Claim: Retaliation Sergeant Farr also seeks to dismiss Plaintiff’s third claim 6 for retaliation pursuant to Section 1983. Defs.’ Mot. at 8-9; 7 Defs.’ Reply at 6. 8 plaintiff must plausibly plead: (1) the plaintiff engaged in 9 constitutionally protected First Amendment activity such as To bring a First Amendment retaliation claim, 10 speech; (2) the defendants’ action caused the plaintiff to suffer 11 an injury that would chill a person of ordinary firmness from 12 continuing to engage in the protected activity; and (3) there was 13 a causal relationship between the plaintiff’s protected activity 14 and the defendants’ conduct. 15 988 (9th Cir. 2016)(internal citations omitted). 16 pleading stage, the complaint must simply allege plausible 17 circumstances connecting the defendant’s retaliatory intent to 18 the suppressive conduct, and motive may be shown with direct or 19 circumstantial evidence.” 20 (9th Cir. 2019) (internal citation and quotations marks omitted); 21 see also Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 22 (“Because direct evidence of retaliatory intent rarely can be 23 pleaded in a complaint, allegation of a chronology of events from 24 which retaliation can be inferred is sufficient to survive 25 dismissal.”). 26 Mulligan v. Nichols, 835 F.3d 983, “At the Koala v. Khosla, 931 F.3d 887, 905 Farr argues Plaintiff did not sufficiently allege the third 27 element: causal connection. Defs.’ Mot. at 9. 28 Farr contends that there is no allegation he was informed of 11 Specifically, 1 Plaintiff’s disability and thus there can be no causal connection 2 to his failure to intervene on Pasley’s retaliatory use of force. 3 Id. 4 that Sergeant Farr was present when Plaintiff informed Officer 5 Pasley of his “physical disability caused by a previous shoulder 6 surgery to his left arm which required the site of the injury to 7 be treated with care.” 8 allegations together and drawing inferences in Plaintiff’s favor, 9 the Court may infer that Farr heard what Plaintiff told Pasley 10 But as Plaintiff points out, this ignores the allegations FAC ¶¶ 27-32, 41. Taking these and thus was informed of his disability.2 11 Because Plaintiff has sufficiently alleged a causal 12 connection, the Court denies Defendants’ motion as to the third 13 claim against Sergeant Farr. 14 c. 15 Second and Seventh Claims: Excessive Force Chief Harr and Sergeant Farr move to dismiss Plaintiff’s 16 second claim for excessive force pursuant to 42 U.S.C. Section 17 1983 and seventh claim for excessive force pursuant to Cal. 18 Const., Art. I. Section 13. 19 at 4-6. 20 seventh excessive force claims against Harr for lack of factual 21 detail. 22 has not alleged conduct on the part of Harr or Farr that would Defs.’ Mot. at 10-14; Defs.’ Reply The Court previously dismissed Plaintiff’s second and Prior Order at 6-10. Defendants argue Plaintiff still 23 24 25 26 27 28 Because these allegations are sufficient to state a causal connection, the Court need not reach the parties’ additional arguments. See Pl.’s Opp’n at 8-9; Defs.’ Reply at 6-7. Further, part of Defendants’ argument regarding this claim ran over the Court’s page limit on reply memorandum and was not considered by the Court. See Defs.’ Reply at 7; see also Order re Filing Requirements (“Order”) at 1, ECF No. 3-2. 12 2 1 allow for individual liability. 2 Defs.’ Mot. at 10-14; Defs.’ Reply at 4-6. 3 To state a Section 1983 claim against a supervisor, a 4 plaintiff must allege: “(1) his or her personal involvement in 5 the constitutional deprivation, or (2) a sufficient causal 6 connection between the supervisor’s wrongful conduct and the 7 constitutional violation.” 8 (9th Cir. 2011) (internal citation omitted); see also Larez v. 9 City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991) Starr v. Baca, 652 F.3d 1202, 1207 10 (explaining a “supervisor will rarely be directly and personally 11 involved in the same way as are the individual officers who are 12 on the scene inflicting constitutional injury” yet “this does not 13 prevent a supervisor from being held liable in his individual 14 capacity”). 15 As to Chief Harr, Defendant contends the FAC contains only 16 conclusory allegations that Harr failed to adequately train, 17 supervise and discipline officers. 18 the Court to FAC ¶ 86.) 19 opposition Plaintiff set forth a number of facts from police 20 reports that he could add to the complaint. 21 Thus, amendment would not be futile. 22 seventh claims as to Chief Harr are dismissed but with leave to 23 amend. 24 Defs.’ Reply at 4 (referring The Court agrees. However, in Pl.’s Opp’n at 6-7. Accordingly, the second and As to Sergeant Farr, Defendant concedes that Farr was 25 present at the scene when Officer Pasley used force on Plaintiff, 26 but insists that Plaintiff’s cited authority, Lolli v. County of 27 Orange, 351 F.3d 410, 418 (9th Cir. 2003), is distinguishable. 28 Defs.’ Reply at 4-5. But as Defendants themselves summarize: “In 13 1 Lolli, the Court found a supervising sheriff liable because he 2 did not intervene in an altercation between an inmate and another 3 officer.” 4 has alleged here, that Sergeant Farr did not intervene in an 5 altercation between Plaintiff and Officer Pasley. 6 39. 7 despite being present when Plaintiff informed Officer Pasley of 8 his “physical disability caused by a previous shoulder surgery to 9 his left arm which required the site of the injury to be treated Id. at 4. Those facts are similar to what Plaintiff See FAC ¶¶ 32- Specifically, Plaintiff alleges Farr did not intervene 10 with care.” 11 sufficient to maintain excessive force claims against Farr. 12 13 FAC ¶¶ 27-32, 41, 56-57. These allegations are Accordingly, Defendants’ motion to dismiss the second and seventh claims as to Sergeant Farr is denied. 14 d. 15 Eighth Claim: Bane Act Chief Harr and Sergeant Farr also seek to dismiss 16 Plaintiff’s eighth claim for violation of the Bane Act. Defs.’ 17 Mot. at 14. 18 failure to allege specific intent to violate Plaintiff’s rights 19 as required under Reese v. Cty. of Sacramento, 888 F.3d 1030, 20 1043 (9th Cir. 2018). 21 remedy the deficiencies identified by the Court in its prior 22 order, and Plaintiff’s opposition rehashes the same legal 23 arguments that the Court previously rejected. 24 12. 25 finds it appropriate to dismiss this claim with prejudice. 26 Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002) (finding 27 leave to amend need not be granted when amendment would be 28 futile). The Court previously dismissed this claim for Prior Order at 10-12. Accordingly, this claim is dismissed. The FAC does not Pl.’s Opp’n at 11- Further, the Court See Given that Plaintiff has already amended his complaint, 14 1 further amendment would be futile. 2 Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (noting that 3 where the plaintiff has previously been granted leave to amend 4 and subsequently failed to cure deficiencies the district court’s 5 discretion to deny leave to amend is particularly broad). 6 7 e. See Zucco Partners, LLC v. Tenth, Eleventh, and Twelfth Claims Finally, in a short paragraph tacked on to the final page of 8 their motion, Chief Harr and Sergeant Farr make the sweeping ask 9 that Plaintiff’s tenth claim for assault/battery, eleventh claim 10 for intentional infliction of emotional distress (“IIED”), and 11 twelfth claim for negligence be dismissed. 12 Yet they cite to only one factually dissimilar case to support 13 their argument that each of these three claims should be 14 dismissed. 15 regarding these claims in their reply brief. 16 This is plainly insufficient. 17 denied as to Plaintiff’s tenth, eleventh, and twelfth claims 18 against Harr and Farr. Id. Defs.’ Mot. at 15. Further, they offer no additional argument See Defs.’ Reply. Defendants’ motion is therefore 19 20 21 III. SANCTIONS Defendants exceeded the Court’s 5-page limit on reply 22 memoranda. See Reply; see also Order re Filing Requirements 23 (“Order”) at 1, ECF No. 3-2. 24 order require the offending counsel, not the client, to pay 25 $50.00 per page over the page limit to the Clerk of Court. 26 at 1. 27 the page limit. 28 Court’s page limit by 1.5 pages. Violations of the Court’s standing Order Moreover, the Court did not consider arguments made past Id. Defendants’ reply brief exceeded the Accordingly, Defendants’ 15 1 counsel must send a check payable to the Clerk for the Eastern 2 District of California for $75.00 no later than seven days from 3 the date of this order. 4 5 6 7 8 9 10 IV. ORDER For the reasons set forth above, the Court DENIES Plaintiff’s motion to strike. The Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss: 1. Defendants’ Motion is DENIED as to Plaintiff’s fourth 11 and fifth claims against the City of Gridley and Gridley Police 12 Department; as to the first, third, sixth, and ninth claims 13 against Sergeant Farr; as to the second and seventh claims 14 against Sergeant Farr; and as to the tenth, eleventh, and 15 twelfth claims against Chief Harr and Sergeant Farr. 16 17 18 19 2. Defendants’ Motion is GRANTED WITHOUT PREJUDICE as to the second and seventh claims against Chief Harr. 3. Defendants’ Motion is GRANTED WITH PREJUDICE as to the eighth claim against Chief Harr and Sergeant Farr. 20 Plaintiff’s amended complaint must be filed within twenty days 21 of this Order. Defendants’ responsive pleading is due twenty days 22 thereafter. 23 24 IT IS SO ORDERED. Dated: November 16, 2021 25 26 27 28 16

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