Peinado v. City and County of San Francisco et al

Filing 26

ORDER by Judge Edward M. Chen Granting in Part and Denying in Part 17 Defendant's Motion to Dismiss. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 1/15/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 RENE PEINADO, 9 11 For the Northern District of California United States District Court 10 No. C-11-1799 EMC Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS v. CITY AND COUNTY OF SAN FRANCISCO, (Docket Nos. 16-17) 12 13 Defendant. ___________________________________/ 14 15 16 I. INTRODUCTION 17 Plaintiff Rene Peinado filed a complaint on April 13, 2011 against Defendants the City and 18 County of San Francisco (the “City”) and Elias Georgopoulos asserting four causes of action under 19 42 U.S.C. § 1983 for (1) unreasonable search and seizure; (2) malicious prosecution; (3) violation of 20 First Amendment rights; and (4) a Monell claim. Compl., Docket No. 1. The City now moves to 21 dismiss the Complaint on the grounds that it was not filed within the applicable statute of limitations 22 and not served within the period of time allowed for service. See Def.’s Mot., Docket No. 16. For 23 the reasons stated herein, the Court GRANTS in part and DENIES in part the City’s motion. 24 II. FACTUAL & PROCEDURAL BACKGROUND 25 Plaintiff alleges in his complaint that on or about March 23, 2005, Georgopoulos, a parking 26 control officer for the San Francisco Municipal Transportation Agency, falsely accused Plaintiff of 27 committing assault and battery against Georgopoulos with Plaintiff’s vehicle. Compl., Docket No. 28 1, ¶ 11. As a result of this false accusation, Plaintiff was arrested on March 25, 2005, placed in jail, 1 and subsequently charged with assault and battery. Id.; see Pl.’s Opp’n, Docket No. 21, Ex. A.1 2 Plaintiff was arraigned on April 1, 2005, at which time he pled not guilty to the charges against him. 3 Pl.’s Opp’n, Docket No. 21, Ex. A. Plaintiff was acquitted of all charges on April 14, 2009. 4 Compl., Docket No. 1, ¶ 11; Pl.’s Opp’n, Docket No. 21, Ex. A. 5 6 7 III. A. DISCUSSION Legal Standard Under Federal Rules of Civil Procedure, Rule 12(b)(6), a party may move to dismiss based motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See 10 Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, 11 For the Northern District of California on the failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A 9 United States District Court 8 a court must take all allegations of material fact as true and construe them in the light most favorable 12 to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are 13 insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 14 2009). While “a complaint need not contain detailed factual allegations . . . it must plead ‘enough 15 facts to state a claim to relief that is plausible on its face.’” Id. “A claim has facial plausibility when 16 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 17 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see 18 also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “The plausibility standard is not akin to 19 a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted 20 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 21 As § 1983 is silent on statutes of limitations, federal courts look to the underlying state law 22 for guidance. See 42 U.S.C. § 1988(a). The statute of limitations for § 1983 claims arising in 23 California is two years. See Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004). Unlike the 24 length of the statute of limitations period, the accrual of a § 1983 claim is a question of federal law. 25 26 1 27 28 The Court takes judicial notice of the docket report for Plaintiff’s criminal case attached as Exhibit A to his opposition to the City’s motion to dismiss. In ruling on a 12(b)(6) motion, a court may take judicial notice of undisputed matters of public record, including documents on file in federal or state courts. See Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). 2 1 Wallace v. Kato, 549 U.S. 384, 388 (2007). Tolling, on the other hand, generally follows state law 2 principals. See Wallace, 549 U.S. at 394. 3 B. Individual Claim Analysis 4 1. 5 Plaintiff’s first cause of action for unreasonable search and seizure ostensibly refers to his Unreasonable Search and Seizure (First Cause of Action) 6 arrest and imprisonment. See Compl., Docket No. 1, ¶¶ 16-19. Under federal law, a claim for false 7 arrest and imprisonment accrues when an individual’s imprisonment ends or when he becomes 8 detained pursuant to legal process, such as when he is arraigned on charges. See Wallace, 549 U.S. 9 at 388-90. Here, Plaintiff’s first cause of action thus accrued, at the latest, at his April 1, 2005 arraignment. See Pl.’s Opp’n, Docket No. 21, Ex. A. 11 For the Northern District of California United States District Court 10 There is no applicable tolling provision in state law for Plaintiff’s unreasonable search and 12 seizure cause of action. While the statute of limitations for filing an action against a public entity 13 based upon the conduct of a “peace officer” is tolled pursuant to California Government Code 14 section 945.3 (“section 945.3 “) while criminal charges are pending before a superior court, 15 Plaintiff’s claims are based upon the conduct of a parking control officer. See Compl., Docket No. 16 1, ¶ 6. The California Penal Code narrowly and specifically defines a “peace officer.” See Cal. 17 Penal Code §§ 830-831.7 (providing exclusive definition of “peace officer” within meaning of 18 California law); Serv. Employees Int’l Union v. City of Redwood City, 32 Cal. App. 4th 53, 60 19 (1995) (“the Legislature intended to grant peace officer status . . . subject to carefully prescribed 20 limitations and conditions”). A parking officer is not included in that definition. See Cal. Penal 21 Code §§ 830-831.7 (no mention of parking officers); cf. Cal. Penal Code §§ 830.14 (fare inspection 22 conductors are “public officers,” not “peace officers”), 831.4 (even sheriff’s or police security 23 officer are “public officers,” not “peace officers”). Furthermore, the Penal Code requires, at a 24 minimum, that all peace officers satisfactorily complete an introductory course of training prescribed 25 by the Commission on Peace Officer Standards and Training (POST). Cal. Penal Code § 832. 26 Parking control officers are not required to complete POST training, and thus do not fall within the 27 Penal Code’s definition of a “peace officer.” See 8214 Parking Control Officer Examination 28 Announcement, 3 1 (opened Sept. 12, 2012) (last visited Dec. 19, 2012) (training program for parking control officers 2 consists solely of two weeks of classroom instruction, one week of vehicle training, and completion 3 of a mentoring program, and does not include POST training).2 Thus, section 945.3 does not toll 4 Plaintiff’s first cause of action. Cf. Damjanovic v. Ambrose, 3 Cal. App. 4th 503, 510-11 (1992) 5 (Cal. Gov. Code § 945.3 does not apply to non-peace officer defendants charged with false arrest). 6 Plaintiff has not identified any other potentially applicable tolling provision, nor is any apparent 7 from the facts alleged. Absent tolling, the statute of limitations for Plaintiff’s first cause of action 8 expired, at the latest, on April 1, 2007, two years after Plaintiff’s arraignment. 9 Malicious Prosecution (Second Cause of Action) Plaintiff’s second cause of action is for malicious prosecution under § 1983. Following the 11 For the Northern District of California United States District Court 10 2. Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), the Ninth Circuit has 12 recognized that malicious prosecution claims brought under § 1983 accrue upon favorable 13 termination of the underlying criminal proceeding. See Cabrera v. City of Huntington Park, 159 14 F.3d 374, 382 (9th Cir. 1998) (plaintiff’s “malicious prosecution claim did not accrue until his 15 acquittal”); RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1060 n.11 (9th Cir. 2002) (“a claim 16 of malicious prosecution does not accrue until the plaintiff is acquitted, because acquittal is an 17 element of the claim”). 18 At the hearing in this matter, the City urged that, pursuant to the Supreme Court’s more 19 recent decision in Wallace v. Kato, 549 U.S. 384 (2007), the statute of limitations for a malicious 20 prosecution cause of action under § 1983 accrues upon commencement of the underlying criminal 21 proceeding. However, in Wallace the plaintiff specifically did not bring a claim for malicious 22 prosecution, but rather for false arrest and imprisonment. Id. at 390 n.2. The Court specifically 23 distinguished a claim for unlawful detention from the “‘entire district’ tort of malicious 24 prosecution.” Id. at 390. The Court held that a claim for false arrest accrues when the allegedly 25 26 27 28 2 The Court takes judicial notice of the Parking Control Officer examination announcement as a matter of public record not subject to reasonable dispute. Cf. Wilbur v. Locke, 423 F.3d 1101, 1112 (9th Cir. 2005) (Federal Rule of Evidence 201 permits judicial notice of records of public entities), abrogated on other grounds by Levin v. Commerce Energy, Inc., 130 S. Ct. 2323, 2329, 2337 (2010). 4 1 false imprisonment ends; i.e., when the victim is released or becomes held pursuant to legal process, 2 such as when the petitioner was bound over for trial by a magistrate. The Court did not address 3 when a cause of action for malicious prosecution accrued. Although the Court noted it had never 4 explored the contours of a Fourth Amendment malicious prosecution suit under § 1983 (id. at 390, 5 n.2), the Court noted it had analogized the suit in Heck v. Humphrey to “one for malicious 6 prosecution; an element of which is the favorable termination of criminal proceedings.” Id. at 392 7 (emphasis added). 8 Consistent with Wallace, subsequent decisions have continued to recognize that a malicious underlying criminal proceeding. See, e.g., Paris v. City of Elkhart, 614 F.3d 677, 682 (7th Cir. 11 For the Northern District of California prosecution claim brought pursuant to § 1983 does not accrue until favorable termination of the 10 United States District Court 9 2010) (“the tort of malicious prosecution is not complete until a conviction occurs and that 12 conviction has been overturned, and therefore the statute of limitations for malicious prosecution 13 does not begin to accrue until that time.”); Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir. 14 2008) (“Because the statute of limitations does not start running before the elements of a claim are 15 satisfied, the statute of limitations for this due process claim [for malicious prosecution] cannot start 16 until the plaintiff has achieved a favorable result in the original action.”). 17 In this instance, where Plaintiff’s second cause of action is simply a claim for malicious 18 prosecution pursuant to § 1983, Wallace does not mandate an accrual date earlier than Plaintiff’s 19 acquittal; in fact, it supports the conclusion that the claim did not accrue until the case was favorably 20 terminated. The criminal proceedings allegedly terminated in Plaintiff’s favor on April 14, 2009. 21 See Pl.’s Opp’n, Docket No. 21, Ex. A. As he filed his complaint within two years of this date, on 22 April 13, 2011, his second cause of action is not barred by the statute of limitations. 23 3. 24 Plaintiff’s third cause of action alleges that his arrest and prosecution were in retaliation for First Amendment Retaliation (Third Cause of Action) 25 the exercise of his rights under the First Amendment, and thus consists of two sub-claims for 26 retaliatory arrest and retaliatory prosecution. See Compl., Docket No. 1, ¶¶ 26-29. Like his claim 27 for false arrest and imprisonment, Plaintiff’s retaliatory arrest sub-claim accrued, at the latest, on 28 April 1, 2005. See Pl.’s Opp’n, Docket No. 21, Ex. A. Similarly, as it is based on the conduct of a 5 1 parking control officer, not a “peace officer” within the meaning of the law, it is not subject to the 2 tolling provision at California Government Code section 945.3, and thus was not timely filed within 3 the applicable statute of limitations. 4 On the other hand, there is a split in authority as to whether a First Amendment retaliatory 5 prosecution cause of action accrues at the commencement or termination of such prosecution. 6 Compare Mata v. Anderson, 685 F. Supp. 2d 1223, 1247-49, 1262-65 (D.N.M. 2010) (holding that 7 retaliatory prosecution claim accrues as soon as plaintiff has reason to know of prosecution) with 8 Haagensen v. Penn. State Police, No. 08-727, 2009 WL 790355, at *4 (W.D. Penn. Mar. 25, 2009) 9 (concluding that “First Amendment retaliatory prosecution claim did not accrue until the charges 11 For the Northern District of California United States District Court 10 against her had been dismissed”). Here, however, the Court need not determine when Plaintiff’s retaliatory prosecution claim 12 accrued as he does not plead sufficient facts to support either a retaliatory arrest or a retaliatory 13 prosecution cause of action. To prevail in a retaliatory arrest or prosecution cause of action, a 14 plaintiff must demonstrate that “the officials secured his arrest or prosecution without probable 15 cause and were motivated by retaliation against the plaintiff’s protected speech . . . .” Beck v. City of 16 Upland, 527 F.3d 853, 864 (9th Cir. 2008). Here, Plaintiff’s complaint does not allege any such 17 retaliation for protected speech. See Compl., Docket No. 1, ¶¶ 9-12. Rather, he alleges that he was 18 arrested because Defendant Georgopoulos falsely accused him of committing assault and battery. 19 Id. ¶ 11. Thus, his third cause of action, as pled, fails on the merits. 20 4. 21 Plaintiff’s fourth cause of action simply states the basis for holding the City liable for the Monell Claim (Fourth Cause of Action) 22 constitutional violations alleged in his first three causes of action. As the first and third causes of 23 action are barred by the statute of limitations and Plaintiff’s failure to state a claim, so, too, is the 24 Monell claim, to the extent it incorporates those two causes of action. 25 The second cause of action, for malicious prosecution, is not barred by the statute of 26 limitations, as discussed above. Defendant has raised no other specific defense to Plaintiff’s 27 malicious prosecution cause of action or the City’s liability for such malicious prosecution pursuant 28 6 1 to Monell. See Def.’s Mot., Docket No. 16. Thus, the Court does not dismiss the fourth cause of 2 action to the extent it derives from Plaintiff’s malicious prosecution. 3 C. 4 Service of Complaint The City also argues that Plaintiff’s complaint should be dismissed due to his failure to serve 5 it until more than a year after its filing. See Def.’s Mot., Docket No. 16, at 2:21-28. Plaintiff filed 6 his complaint on April 13, 2011, but did not serve it on the City until October 4, 2012, 540 days 7 later. See Compl., Docket No. 1; Proof of Service, Docket No. 15. Plaintiff does not address this 8 argument in his opposition brief. See Docket No. 21. 9 Federal Rules of Civil Procedure, Rule 4(m) provides that “[i]f a defendant is not served within 120 days after the complaint is filed, the court – on motion or on its own after notice to the 11 For the Northern District of California United States District Court 10 plaintiff – must dismiss the action without prejudice against that defendant or order that service be 12 made within a specified time.” “Complaints are not to be dismissed if served within 120 days, or 13 within such additional time as the court may allow.” Henderson v. U.S., 517 U.S. 654, 663 (1996). 14 Here, after 120 days had transpired, the Court extended the time in which Plaintiff could serve the 15 City on December 22, 2011 (Docket No. 10), April 11, 2012 (Docket No. 12), and July 9, 2012 16 (Docket No. 13). Plaintiff complied with the last extension, which required he serve Defendant by 17 October 5, 2012. See Minute Entry, Docket No. 13; Compl., Docket No. 1. 18 Beyond the fact that Plaintiff complied with the Court’s ultimate extension of the time in 19 which to serve the complaint, there are no equitable grounds for granting the City’s motion to 20 dismiss on the basis of Plaintiff’s delay. Plaintiff is representing himself pro se, which “entitles him 21 to a certain degree of leniency so as to ensure that his case is justly resolved on its merits rather than 22 on the basis of procedural technicalities to the extent possible.” See Poulakis v. Amtrak, 139 F.R.D. 23 107, 109 (N.D. Ill. 1991). Moreover, the City has made no argument suggesting it was prejudiced 24 by such delay. See Def.’s Mot., Docket No. 16, at 2:21-28; see also Rice v. Scudder Kemper 25 Investments, Inc., No. 01 Civ. 7078(RLC), 2003 WL 174243, at *2 (S.D.N.Y. Jan. 27, 2003) 26 (approving extension where plaintiff was not represented by counsel throughout 120 day period and 27 defendant’s claim of prejudice was unsupported). Thus, the Court declines to dismiss the complaint 28 on the grounds of untimely service. 7 1 V. CONCLUSION 2 As Plaintiff filed his complaint within the applicable statute of limitations for his malicious 3 prosecution cause of action and related Monell claim, Plaintiff complied with the Court’s ultimate 4 extension of time in which to serve his complaint, and the City has not demonstrated any prejudice 5 resulting from such delay in service, the Court DENIES the City’s motion to dismiss these claims. 6 As Plaintiff did not file his complaint within the applicable statute of limitations for his unreasonable 7 search and seizure, First Amendment retaliatory arrest, and related Monell claims, the Court 8 GRANTS the City’s motion to dismiss these claims. Lastly, as Plaintiff does not plead sufficient 9 facts to support a claim for retaliatory arrest, retaliatory prosecution, or the related Monell claims, 11 For the Northern District of California United States District Court 10 the Court GRANTS the City’s motion to dismiss these claims. Plaintiff has not yet amended his complaint. Thus, the Court’s dismissal is without prejudice 12 and with leave to amend. However, he should not re-assert the claims dismissed unless he has a 13 basis for doing so consistent with Fed. R. Civ. P. 11. Plaintiff has thirty days from the date of this 14 order in which to file a first amended complaint should he choose to do so. 15 This order disposes of Docket Nos. 16 and 17. 16 17 IT IS SO ORDERED. 18 19 Dated: January 15, 2013 20 _________________________ EDWARD M. CHEN United States District Judge 21 22 23 24 25 26 27 28 8

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