Mendez et al v. Becher et al

Filing 24

ORDER by Judge Edward M. Chen Granting 18 Defendant Chief Becher's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 2/5/2013)

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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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ORDER GRANTING DEFENDANT
CHIEF BECHER’S MOTION TO
DISMISS

Defendants.
___________________________________/

(Docket No. 18)
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After Plaintiff Carlos Mendez filed his initial complaint for deprivation of constitutional

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rights pursuant to 42 U.S.C. § 1983 on August 8, 2012, in which he named Chief Teresa Becher,

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Officer Montour, and Officer J.W. Anderson of the Golden Gate Division of the California Highway

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Patrol as Defendants (Docket No. 1), this Court dismissed a number of Plaintiff’s claims and granted

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Plaintiff leave to amend (Docket No. 15). In its order, the Court determined that “Plaintiff [did] not

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make any specific allegations about how Chief Becher’s conduct resulted in his constitutional

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deprivation, beyond conclusory statements regarding her approving, ratifying, condoning,

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encouraging, or tacitly authorizing a pattern and practice of misconduct” and thus dismissed

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Plaintiff’s complaint as against Chief Becher. See Docket No. 15.

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Despite the Court’s admonition that he needed to plead more facts in order to state a claim

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against Chief Becher, Plaintiff filed a first amended complaint (“FAC”) on December 6, 2012

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simply concluding that Chief Becher “knew and/or reasonably should have known about acts of

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misconduct by Defendants MONTOUR, ANDERSON, and DOES 1-10,” that she “approved,

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ratified, condoned, encouraged and/or tacitly authorized the continuing pattern and practice of

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misconduct and/or civil rights violations,” and that, “as a result of the deliberate indifference,

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reckless and/or conscious disregard of the misconduct by Defendants MONTOUR, ANDERSON,

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and DOES 1-10,” Chief Becher “encouraged these officers and/or agents to continue their course of

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misconduct.” See FAC ¶¶ 30-35. Chief Becher subsequently moved to again dismiss all claims

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against her. See Mot. to Dismiss, Docket No. 18. The Court finds this matter suitable for

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disposition without oral argument and VACATES the hearing set for February 7, 2013.

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As stated in the Court’s previous order, in a section 1983 suit “each Government official, his

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or her title notwithstanding, is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556

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U.S. 662, 677 (2009). A supervisor may be held liable for the actions of his or her subordinates “‘if
there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a

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For the Northern District of California

United States District Court

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sufficient causal connection between the supervisor’s wrongful conduct and the constitutional

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violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d

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642, 646 (9th Cir.1989)).

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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.

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Id. at 1207-08 (internal citations, alterations, and quotation marks omitted). When attempting to

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establish individual liability in a suit arising under 42 U.S.C. § 1983, a complaint “based on

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conclusory allegations and generalities, without any allegation of the specific wrong-doing by each

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Defendant,” is insufficient. See Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012).

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Here, Plaintiff’s first amended complaint has failed to remedy the deficiencies of his

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previous complaint, instead simply repackaging conclusory allegations against Chief Becher. In his

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brief in opposition to Chief Becher’s motion to dismiss, Plaintiff argues new facts not pled in his

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complaint, including (1) that Officer Montour and Officer Anderson’s misconduct was so egregious

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that it could only have occurred in an atmosphere where such acts are not admonished, (2) that Chief

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Becher, through the routine administration of her duties as chief, reviewed or was required to review

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Plaintiff’s citizen complaint, her department’s response, and the attendant incident report of the

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relevant incident and failed to admonish or discipline Officer Montour or Officer Anderson, thereby

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ratifying and condoning their misconduct, and (3) that discovery will reveal instances of similar

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conduct left unchecked. See Pl.’s Opp’n to Mot. to Dismiss, Docket No. 20, at 4-5. As a

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preliminary matter, Plaintiff did not plead any of these facts in his first amended complaint, and thus

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they have no bearing on the disposition of the current motion. However, even if he had pled them,

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they would still be insufficient to state a claim against Chief Becher. For one, the first new claim

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makes no allegations as to Chief Becher’s specific wrong-doing, as required. See Hydrick, 669 F.3d

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at 942. Second, as mentioned in the Court’s earlier order, “[p]ost-facto ratification of a singular
instance of wrongdoing against the Plaintiff may not satisfy the causation requirement.” See Order,

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For the Northern District of California

United States District Court

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Docket No. 15, at 2:14-15. Lastly, speculation that discovery may turn over facts suggesting

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deliberate indifference does not suffice, as Plaintiff “must still allege sufficient facts to plausibly

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establish [Chief Becher’s] knowledge of and acquiescence in the unconstitutional conduct of [her]

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subordinates.” See Hydrick, 669 F.3d at 942 (quotation marks and citation omitted).

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In sum, Plaintiff’s first amended complaint fails as against Chief Becher for the exact same

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reason as did his initial complaint. Thus, the Court GRANTS Chief Becher’s motion to dismiss. As

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Plaintiff has already had the opportunity to amend his complaint, but failed to plead any additional

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facts as against Chief Becher, the Court does not give Plaintiff leave to amend at this juncture. If

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Plaintiff obtains additional information that suggests a potential claim against Chief Becher, he may

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move the Court for leave to amend his complaint to reinsert her as a Defendant, but is advised to

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ensure that, pursuant to Federal Rules of Civil Procedure, Rule 11(b)(3), the factual contentions

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contained therein “have evidentiary support or, if specifically so identified, will likely have

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evidentiary support after a reasonable opportunity for further investigation or discovery.”

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This order disposes of Docket No. 18.

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IT IS SO ORDERED.

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Dated: February 5, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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