Henry v. San Francisco Police Department

Filing 20

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT by Judge Jacqueline Scott Corley granting 16 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (tlS, COURT STAFF) (Filed on 8/18/2014)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 10 United States District Court Northern District of California 11 DONALD R. HENRY, Case No. 14-cv-01624-JSC Plaintiff, v. SAN FRANCISCO POLICE DEPARTMENT, Defendant. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED COMPLAINT Re: Dkt. No. 16 12 13 Plaintiff Donald Henry, proceeding pro se, alleges that the San Francisco Police 14 Department violated his Fourth Amendment rights and subjected him to false arrest. Now pending 15 before the Court is Defendant’s Motion to Dismiss his First Amended Complaint under Federal 16 Rule of Civil Procedure 12(b)(6). (Dkt. No. 16.) Having considered the parties’ submissions, the 17 Court concludes that oral argument is not necessary, see Civ. L.R. 7-1(b), VACATES the August 18 21, 2014 hearing, and GRANTS Defendant’s Motion to Dismiss. Plaintiff has again failed to 19 sufficiently identify the arrests at issue and to allege facts that give rise to a plausible inference of 20 a lack of probable cause. 21 22 BACKGROUND Plaintiff filed this civil action pro se alleging that Defendant, the San Francisco Police 23 Department, violated his Fourth Amendment rights and arrested him without probable cause and 24 harassed him. The complaint did not identify any particular incidents by date, but contended that 25 the arrests began in 2009 and were on-going, and he had he had experienced “a pattern of 26 harassment [sic], police misconduct, tactics of buy/bust that border on entrapment, and just being 27 dehumanized.” (Dkt. No. 1 at 1:21-22.) He then alleged: 28 I was walking on Sixth Street when a police officer asked me was that a beer that I had in my hand, my response was no, his response was for my i.d. which after that he informed me that I have a 35,000 dollar warrant issued for my arrest. I asked the officer why he did not come to my address which is one block away if I was not being stopped and frisked, it would be for unlawful sale or purchase of a controlled substance, all of these situations were a block away from my home I felt that I was on their radar each time I walked the streets. 1 2 3 4 5 6 (Dkt. No. 1 at 1-2.) Along with his complaint, Plaintiff submitted documents which appeared to 7 relate to his arrest in 2010 for sale of a controlled substance to a police officer. (Dkt. No. 1 at 38 12.) He also submitted a document that appears to reflect that a charge of 11352(A)(distribution 9 of a controlled substance) was dismissed in April 2013 due to the age of the case. (Dkt. No. 1 at 10 12.) He also submitted psychotherapy notes from 2010 and 2011. (Dkt. No. 1 at 19-24.) 11 United States District Court Northern District of California The Court granted Defendant’s motion to dismiss the complaint as Plaintiff failed to state a 12 claim for false arrest under 28 U.S.C. § 1983 and his state law claims were barred by the 13 California Tort Claims Act. (Dkt. No. 14.) Plaintiff was granted to leave to amend his complaint 14 to include specific factual allegations to support his claims and demonstrate entitlement to relief. 15 Shortly thereafter, Plaintiff filed his First Amended Complaint (“FAC”) which reattaches 16 his original complaint and all the documents previously submitted. The cover page to the FAC 17 states: 18 19 20 21 22 23 24 25 I would like to refile my first amendment complainty [sic] for violations of my forth [sic] amendment amendment [sic] rights of false arrest without probable cause, and harrasment [sic] based on Heck vs. Humphreys. I am identifying each case the court ordered with dates and outcomes as highlighted on all attachments. 1. 9-82010 consumption of alcohol on public street. 2. Forth [sic] Amendment rights violation on false arrest without probable cause and harrasment [sic] based on Heck vs. Humphrey. 3. See attachments regarding loss of ability to gain employment. 4. Heck vs. Humphrey 512 U.S. 477, 486-87 (1994) to challenge unconstitutional conviction or arrest. 5. Based on my history with the San Francisco Police [illegible] the intentions of the police knowing I had a 35,000 warrant was the pretext to harrass [sic] me. (Dkt. No. 15.) The only new documents attached to the FAC are (1) flyers regarding San 26 Francisco’s “Fair Chance” campaign, and (2) what appears to be Plaintiff’s criminal history print27 out from June 27, 2014. (Dkt. No. 15, pp. 5-6, 30-31.) 28 2 1 Defendant has again moved to dismiss contending that the FAC fails to state a claim upon 2 which relief can be granted. (Dkt. No. 16.) Plaintiff thereafter filed a document entitled 3 “Attachments to Amended Complaint” which includes documents relating to an arrest in 2007 and 4 another in 2010. (Dkt. No. 17.) Plaintiff has not otherwise filed an opposition to the motion to 5 dismiss. 6 7 LEGAL STANDARD A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the 8 sufficiency of the complaint where the action fails to allege “enough facts to state a claim to relief 9 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 11 United States District Court Northern District of California 10 reasonable inference that the defendant is liable for the misconduct alleged. The plausibility 12 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that 13 a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations 14 omitted). Under Federal Rule of Civil Procedure 8(a)(2) a party is only required to make “a short 15 and plain statement of the claim showing that the pleader is entitled to relief, in order to give the 16 defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 17 U.S. at 554 (internal citations and quotations omitted). 18 For purposes of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in 19 the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving 20 party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 21 However, even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), “a 22 plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels 23 and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 24 Twombly, 550 U.S. at 555 (internal citations and quotations omitted). “Determining whether a 25 complaint states a plausible claim for relief ... [is] a context-specific task that requires the 26 reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 27 U.S. 662, 129 S.Ct. 1937, 1950 (2009). 28 3 1 Pro se pleadings are generally liberally construed and held to a less stringent standard. 2 See Erickson v. Pardus, 551 U.S. 89, 94 (2007). In Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010), 3 the Ninth Circuit held that courts must still liberally construe pro se filings post-Iqbal noting that 4 “[w]hile the standard is higher, our obligation remains, where the petitioner is pro se, particularly 5 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of 6 any doubt.” Id. at 342 (internal quotations and citations omitted). Nevertheless, the Court may 7 not “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of 8 the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 9 If a Rule 12(b)(6) motion is granted, a “district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not 11 United States District Court Northern District of California 10 possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 12 2000) (en banc) (internal quotation marks and citations omitted). However, the Court may deny 13 leave to amend for a number of reasons, including “undue delay, bad faith or dilatory motive on 14 the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, 15 undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of 16 amendment.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing 17 Foman v. Davis, 371 U.S. 178, 182 (1962) (emphasis added)). 18 DISCUSSION 19 Defendant moves to dismiss under Rule 12(b)(6) contending that (1) Plaintiff again fails to 20 state a claim for false arrest under 42 U.S.C. § 1983 and any claim he might make would be time- 21 barred based on the evidence submitted, and (2) any state law claim is barred as failing to comply 22 with the claim presentation requirements. Plaintiff did not file an opposition to the motion to 23 dismiss, but did file a document entitled “Attachments to Amended Complaint” shortly after 24 Defendant filed its motion to dismiss; the Court will construe the “Attachments” as his opposition 25 brief. It states: “All information provided in attachments are related to all cases related to my 26 claims, i.e., dates of arrests, where arrest happened, officers involved, and any pertinent 27 information pursuant to resolution of the his matter, all other information has been provided to the 28 4 1 courts.” (Dkt. No. 17.) The documents attached appear to relate to an arrest in 2007 and another 2 in 2010, neither of which resulted in a conviction. (Dkt. No. 17, pp. 2-10.) 3 A. Plaintiff’s Section 1983 Claim 4 To state a claim under § 1983, a complaint “must both (1) allege the deprivation of a right 5 secured by the federal Constitution or statutory law, and (2) allege that the deprivation was 6 committed by a person acting under color of state law.” Anderson v. Warner, 451 F.3d 1063, 1067 7 (9th Cir. 2006). The Court’s prior order concluded that Plaintiff’s allegations were insufficient 8 under either prong. 9 With respect to the first prong “[t]o prevail on his § 1983 claim for false arrest and imprisonment, [Plaintiff] would have to demonstrate that there was no probable cause to arrest 11 United States District Court Northern District of California 10 him.” Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998). With his amended 12 complaint and the documents attached to his opposition brief, Plaintiff proffers documents 13 suggesting that his March 27, 2007 arrest was dismissed for lack of evidence and his June 8, 2010 14 arrest was dismissed in 2013 by the district attorney based on “age of case.” (Dkt. No. 17 pp. 2-3, 15 10.) His original and amended complaint also vaguely refer to a September 2010 arrest for 16 possessing alcohol in public and implies that this arrest too did not result in a conviction. Plaintiff 17 thus appears to argue that the lack of a conviction establishes that there was no probable cause for 18 the arrest. Plaintiff is wrong. 19 To make a valid claim for false arrest, the plaintiff “must plead facts that would show 20 [defendant] ordered or otherwise procured the arrests and the arrests were without probable 21 cause.” Lacey v. Maricopa County, 693 F.3d 896, 918 (9th Cir. 2012). “Probable cause exists 22 when, under the totality of the circumstances known to the arresting officers (or within the 23 knowledge of the other officers at the scene), a prudent person would believe that the suspect had 24 committed a crime.” March v. Twin Cities Police Authority, (N.D. Cal. 2014) (internal quotation 25 marks and citation omitted). Here, Plaintiff has failed to allege any facts that suggest why he 26 believes he was arrested without probable cause on any occasion, let alone facts that support a 27 probable inference that he was in fact arrested without probable cause. He has simply attached 28 progress notes from psychotherapy visits in 2009, his criminal history, and what appear to be 5 1 disposition reports for his 2007 and 2010 arrests. These attachments do not provide any 2 information about what precipitated the police officer’s initial contact with Plaintiff or information 3 regarding what happened during Plaintiff’s interaction with the police officer(s). Without 4 allegations as to these matters, Plaintiff has not pled sufficient facts from which the Court could 5 infer that there was insufficient probable cause for his arrest. Just because he was not convicted 6 does not mean the police lacked probable cause for the arrests. 7 It also remains unclear which arrests he is challenging, and his criminal history merely muddies the record further. This lack of clarity is significant because claims based on many of the 9 arrests appear time-barred. “Section 1983 does not contain its own statute of limitations. Without 10 a federal limitations period, the federal courts borrow the statute of limitations for § 1983 claims 11 United States District Court Northern District of California 8 applicable to personal injury claims in the forum state.” TwoRivers v. Lewis, 174 F.3d 987, 991 12 (9th Cir. 1999) (citation omitted). In California, the statute of limitations for personal injury 13 actions is two years. Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007). “Under 14 federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is 15 the basis of the action.” TwoRivers, 174 F.3d at 991 (citation omitted). Here, Plaintiff alleges a 16 pattern of harassment and unlawful arrest by the San Francisco Police Department, but the specific 17 incidents he references occurred in 2007 and 2010—well beyond the two year statute of 18 limitations. Further, while criminal charges were pending for at least one of the arrests until 19 2013, the statute of limitations is likely not tolled during that period. See Wallace v. Kato, 549 20 U.S. 384 (2007). Accordingly, Plaintiff’s claims appear barred by the statute of limitations. 21 Finally, Plaintiff still has not alleged that the constitutional violation was committed by a 22 person acting under color of law. Plaintiff has not included any allegations as to a particular San 23 Francisco Police Department officer, but instead, names the San Francisco Police Department 24 generally. Plaintiff’s opposition brief states that the attached documents indicate the “officers 25 involved,” but the Court did not discern any such information in attached documents. (Dkt. No. 26 17 at 1:17.) While a “person” for purposes of § 1983 includes municipalities, such entities cannot 27 be held accountable for their employees’ acts under a respondeat superior theory. Monell v. Dep’t 28 of Social Serv., 436 U.S. 658, 690 (1978). Plaintiff has not included specific information 6 1 regarding any of his encounters with the San Francisco Police Department such that the Court 2 could infer that he was subject to false arrest pursuant to a formal governmental policy or a 3 longstanding practice or custom as would be required to establish Monell liability. B. Plaintiff’s State Law Claims 5 Notwithstanding the Court’s dismissal of Plaintiff’s state law claims for failure to allege 6 that he presented his claim to the public entity in compliance with the California Tort Claims Act, 7 Plaintiff has failed to allege any new facts regarding his state law claims, including compliance 8 with the presentation requirement. See Elder-Evins v. Casey, No. 09-05775, 2011 WL 337791, at 9 *5 (N.D. Cal. Jan. 31, 2011) (granting motion to dismiss false arrest claims where plaintiff failed 10 to allege compliance with the California Tort Claims Act); Stewart v. Morris, No. 10-04106, 2010 11 United States District Court Northern District of California 4 WL 4973634, at *5 (N.D. Cal. Dec. 1, 2010) (dismissing false arrest claim as time barred under 12 the California Tort Claims Act). Plaintiff was warned that his amended complaint must allege 13 compliance with the California Tort Claims Act; because Plaintiff has not done so his state law 14 claims are dismissed with prejudice. CONCLUSION 15 16 17 18 19 For the reasons set forth above, Defendant’s Motion to Dismiss (Dkt. No. 16) is GRANTED. Plaintiff’s state law claims are dismissed with prejudice as barred by the California Tort Claims Act. 20 Plaintiff’s Section 1983 claim is (or claims are) dismissed without prejudice. Plaintiff is 21 granted to leave to amend his Section 1983 false arrest claim one final time. If Plaintiff elects to 22 file a second amended complaint, he must provide detailed factual allegations support his claim. 23 He shall: 24 (1) identify, by date, each incident of false arrest. He may not rely on documents attached 25 to his amended complaint; instead, his amended complaint must identify in the text 26 each and every arrest which he is challenging in this lawsuit. 27 28 (2) allege facts sufficient to support a plausible inference that he was arrested on each challenged occasion without probable case. This requirement means that in the text of 7 1 the amended complaint he must explain the facts that support his belief that the 2 arresting officer did not have probable cause and, to the extent he is able to do so, 3 identify the arresting officer. 4 5 6 (3) allege facts sufficient for the Court to infer that his claims are not barred by the statute of limitations. If Plaintiff elects to file a second amended complaint, he must do so on or before 7 September 11, 2014. Plaintiff is reminded that he may contact the Legal Help Center, 450 Golden 8 Gate Avenue, 15th Floor, Room 2796, Telephone No. (415) 782-8982, for free assistance 9 regarding his claims. Plaintiff is warned that his failure to file a second amended complaint by 10 United States District Court Northern District of California 11 12 13 14 15 16 September 11, 2014 will result in dismissal of his section 1983 claim with prejudice. The case management conference scheduled for August 21, 2014 is continued to November 13, 2014 at 1:30 p.m. This Order disposes of Docket No. 16. IT IS SO ORDERED. Dated: August 18, 2014 ______________________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 8

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