Mendez et al v. Becher et al

Filing 15

ORDER by Judge Edward M. Chen Granting in Part and Denying in Part 5 Defendants' Motion to Dismiss and Motion to Strike. (emcsec, COURT STAFF) (Filed on 11/7/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARLOS MENDEZ,

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Plaintiff,
v.

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For the Northern District of California

United States District Court

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No. C-12-4170 EMC

CHIEF TERESA BECHER, et al.,

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Defendants.
___________________________________/

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS AND MOTION
TO STRIKE
(Docket No. 5)

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Having considered the motion, all papers that are related thereto, and the argument of

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counsel, the Court hereby GRANTS Defendants’ motion to dismiss and DENIES Defendants’

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motion to strike for the reasons stated on the record, and as summarized, in part, below.

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The parties confirmed on the record that all Defendants are sued in only their individual

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capacities and that the first cause of action asserts a claim only against Defendants Montour and

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Anderson (and not Chief Becher) arising under the Fourth Amendment (and not the Fifth, Ninth, or

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Fourteenth Amendments). Defendants do not move to dismiss this cause of action as clarified.

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The parties confirmed on the record that the second cause of action only states a claim

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arising under the Fourth Amendment (and not the Fifth, Ninth, or Fourteenth Amendments) against

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Defendant Becher in her individual capacity (and not Defendants Montour or Anderson). The Court

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DISMISSES without prejudice (with leave to amend within 30 days) Plaintiff’s second cause of

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action. In a section 1983 suit, “each Government official, his or her title notwithstanding, is only

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liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A supervisor

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may be held liable for the actions of his or her subordinates “‘if there exists either (1) his or her

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personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between

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the supervisor’s wrongful conduct and the constitutional violation.’” Starr v. Baca, 652 F.3d 1202,

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1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989)).

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Id. at 1207-08 (internal citations, alterations, and quotation marks omitted).
Here, Plaintiff does not make any specific allegations about how Chief Becher’s conduct

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For the Northern District of California

United States District Court

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The requisite causal connection can be established by setting in
motion a series of acts by others or by knowingly refusing to terminate
a series of acts by others, which the supervisor knew or reasonably
should have known would cause others to inflict a constitutional
injury. A supervisor can be liable in his individual capacity for his
own culpable action or inaction in the training, supervision, or control
of his subordinates; for his acquiescence in the constitutional
deprivation; or for conduct that showed a reckless or callous
indifference to the rights of others.

resulted in his constitutional deprivation, beyond conclusory statements regarding her approving,

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ratifying, condoning, encouraging, or tacitly authorizing a pattern and practice of misconduct. Such

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conclusory allegations do not suffice to state a cause of action. See Hydrick v. Hunter, 669 F.3d

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937, 942 (9th Cir. 2012). Post-facto ratification of a singular instance of wrongdoing against the

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Plaintiff may not satisfy the causation requirement.

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The parties confirmed on the record that the third cause of action only asserts a claim arising

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under the Fourth Amendment (and not the Fifth, Ninth, or Fourteenth Amendments) against

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Defendant Becher in her individual capacity (and not Defendants Montour or Anderson). The Court

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DISMISSES with prejudice Plaintiff’s third cause of action. Plaintiff’s third cause of action is

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predicated on liability established under Monell v. Department of Social Services, 436 U.S. 658, 691

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(1978), which provides for municipal liability where there is a custom or policy causing the harm to

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plaintiffs. It does not establish individual liability such as that of Chief Becher in her individual

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capacity. If Plaintiff sought to name Chief Becher in her official capacity, this cause of action would

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nevertheless be barred pursuant to the Eleventh Amendment, as the California Highway Patrol, for

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whom Chief Becher works, is a state entity, not a municipal entity. See Quern v. Jordan, 440 U.S.

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332, 342 (1979); Will v. Mich. Dep’t State Police, 491 U.S. 58, 71 (1989) (“neither a State nor its

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officials acting in their official capacities are ‘persons’ under § 1983”).

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In his papers and as confirmed at the hearing, Plaintiff is abandoning his fourth cause of

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action for assault and battery, his fifth cause of action for false arrest and imprisonment, his sixth

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cause of action for intentional infliction of emotional distress, his eighth cause of action for violation

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of California Civil Code section 51.7, and his ninth cause of action for violation of California Civil

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Code section 52.1 against Chief Becher. Defendants confirmed on the record that they do not move

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to dismiss these causes of action as against Defendants Montour or Anderson. Plaintiff indicated in

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his papers and confirmed at the hearing in this matter that he is withdrawing his seventh cause of

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action for negligent infliction of emotional distress as to all Defendants.

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Defendant moved to strike Plaintiff’s tenth cause of action (which Plaintiff concedes is
brought against Officers Montour and Anderson and not against Chief Becher), for negligence, on

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For the Northern District of California

United States District Court

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the grounds that it is redundant with his other state law claims. The motion is brought only as to the

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claim against Defendant Montour. Even though there is some overlap between Plaintiff’s

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negligence cause of action and his claims, the negligence cause of action is both broader than and

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legally distinguishable from the other causes of action, such as assault and battery, which requires

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intent, and false arrest, which would not apply to conduct before Plaintiff was arrested. Thus, the

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Court DENIES Defendants’ motion to strike Plaintiff’s tenth cause of action.

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This order disposes of Docket No. 5.

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IT IS SO ORDERED.

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Dated: November 7, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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