Contawe V. City & County of San Francisco

Filing 47

ORDER by Judge James Donato granting 35 Motion to Dismiss; granting 40 Motion to Dismiss. (jdlc2S, COURT STAFF) (Filed on 12/23/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERNESTO CONTAWE,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-00222-JD
ORDER GRANTING MOTIONS TO
DISMISS

v.
COUNTY OF SAN MATEO, et al.,

Re: Dkt. Nos. 35, 40

Defendants.
Plaintiff Ernesto Contawe alleges that he was illegally detained and interrogated by

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defendants County of San Mateo, the U.S. Department of Homeland Security, the U.S.

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Department of Justice and “Does 1-50” for over two days. He asserts five claims for relief under

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42 U.S.C. § 1983, and another five under California state common and statutory law. Dkt. No. 34.

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The Court previously granted defendant County of San Mateo’s motion to dismiss with

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leave to amend. Dkt. No. 32. In response, plaintiff filed an amended complaint, Dkt. No. 34, and

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now pending before the Court are defendant County of San Mateo’s and the federal defendants’

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separate motions to dismiss plaintiff’s amended complaint. Dkt. Nos. 35, 40. Because plaintiff’s

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amended complaint still contains the same pleading deficiencies identified in the Court’s previous

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dismissal order, the Court again grants defendants’ motions and dismisses the complaint. Plaintiff

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will be given one final chance to amend his complaint.

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DISCUSSION

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As a preliminary matter, the Court observed in its prior order that “[t]he complaint is

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ambiguous about whether plaintiff is now deceased,” and directed that any amended complaint

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make clear “whether [plaintiff] is currently alive, whether he was alive at the time the initial

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complaint was filed, and if he is not currently alive, why these claims survive his death.” Dkt.

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No. 32 at 4 & n.1. Plaintiff has failed to do even that. Although his opposition briefs state that he

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is “alive and living,” see, e.g., Dkt. No. 43 at 1 n.1, the amended complaint once again contains

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allegations that plaintiff “suffered . . . a loss of life” and seeks “funeral and burial expenses.” Dkt.

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No. 34 ¶¶ 55, 65; see also id. ¶ 71 (alleging that “[b]y reason of the aforementioned policies and

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practices of defendants,” plaintiff “lost his life”).

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This ongoing ambiguity about whether plaintiff is dead or alive is completely
unacceptable. The Court has already instructed plaintiff’s counsel to give a clear answer to this

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simple question, and for reasons unknown counsel has failed to do that. If the complaint is

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amended, it must expressly and definitively state in the description of the plaintiff in the “Parties”

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section whether Contawe is a living, breathing person. If he is not, the amended complaint needs

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to identify who is prosecuting this case. If counsel again fails to provide this information, the case

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United States District Court
Northern District of California

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will be dismissed with prejudice.

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On the substance of his claims, too, the allegations in plaintiff’s amended complaint

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remain impermissibly “vague and perfunctory” such that they give defendants “‘little idea where

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to begin’ in preparing a response to the complaint.” Dkt. No. 32 at 3 (quoting Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 565 n.10 (2007)). As before, the factual gravamen of plaintiff’s

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complaint is that he was wrongfully detained for over fifty hours. See, e.g., Dkt. No. 34 ¶¶ 39, 48,

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102. And, as before, plaintiff provides “just four paragraphs of actual factual allegations” about

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this alleged incident. See id. at 3; Dkt. No. 34 ¶¶ 28-31. In response to the Court’s inquiry about

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“what documents plaintiff was ‘forced to sign’ when he was being released,” Dkt. No. 32 at 3,

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plaintiff has added the allegation that those (still undescribed) documents “may have purported to

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absolve defendants of liability.” Dkt. No. 34 ¶ 31. But other than that vague addition, the

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complaint continues to contain just those four paragraphs of actual factual allegations in a form

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that is virtually unchanged from the prior version of the complaint that the Court dismissed.

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Compare Dkt. No. 1 ¶¶ 30-33 with Dkt. No. 34 ¶¶ 28-31.

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A major problem here is that plaintiff’s counsel fundamentally misunderstands his

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pleading burden. In opposing the dismissal motions, counsel says that, “[i]n Conley v. Gibson,

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355 U.S. 41 (1957), the United States Supreme Court explained that dismissal for failure to state a

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claim should only be granted under narrow circumstances, and complaints should not be dismissed
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unless it appears beyond doubt that the plaintiff cannot prove any facts supporting her claim

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entitling her to relief.” Dkt. No. 43 at 3-4 & Dkt. No. 41 at 3-4. Conley is, of course, old law that

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has been expressly disapproved on this point by the Supreme Court. See Twombly, 550 U.S. at

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562 (“[T]here is no need to pile up further citations to show that Conley’s ‘no set of facts’

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language has been questioned, criticized, and explained away long enough. . . . Conley, then,

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described the breadth of opportunity to prove what an adequate complaint claims, not the

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minimum standard of adequate pleading to govern a complaint’s survival.”). The Court again

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implicitly confirmed in Ashcroft v. Iqbal, 556 U.S. 662, 670 (2009), that “Twombly retired the

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Conley no-set-of-facts test.”

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Iqbal is a case that is quite similar in factual and legal context, and plaintiff’s counsel is

United States District Court
Northern District of California

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strongly advised to study it. The plaintiff there had claimed that he had been “detained by federal

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officials” and that “he was deprived of various constitutional protections while in federal custody.”

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556 U.S. at 666. “To redress the alleged deprivations,” plaintiff filed a complaint against

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numerous federal officials; the respondents in the case before the Supreme Court were John

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Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of

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the Federal Bureau of Investigation. Id. The Court held that “[b]ecause vicarious liability is

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inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official

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defendant, through the official’s own individual actions, has violated the Constitution.” Id. at 676.

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The Court concluded that the allegations against respondents did not meet the plausibility standard

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and were therefore insufficient, at least in part because there were “more likely explanations” for

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plaintiff’s arrest and “discrimination is not a plausible conclusion.” Id. at 681-82.

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Iqbal leads to the same result here. As it instructs, the Court “identif[ies] the allegations in

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the complaint that are not entitled to the assumption of truth.” Id. at 680. The vast majority of the

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allegations here fall into this category. For example, plaintiff alleges that “defendants, each of

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them, had a policy of taking people such as plaintiff into custody and keeping them in custody for

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an extended period of time without adequately determining their identity.” Dkt. No. 34 ¶ 34.

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And, “defendants seized and arrested plaintiff without probabl[e] cause. Defendants did not use

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reasonable care to determine plaintiff’s true identi[t]y once he was in custody within a reasonable
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time period. Plaintiff was then held without charges and without cause for nearly three days

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without any legal justification provided.” Id. ¶ 36. These allegations are like those in Iqbal that

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“petitioners ‘knew of, condoned, and willfully and maliciously agreed to subject [respondent]’ to

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harsh conditions of confinement ‘as a matter of policy solely on account of [his] religion, race,

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and/or national origin and for no legitimate penological interest.’” Iqbal, 556 U.S. at 680. As in

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Iqbal, it can be said of the similar allegations here that “[i]t is the conclusory nature of [these]

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allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption

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of truth.” Id. at 681.

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The Court turns next to the actual factual allegations in plaintiff’s complaint -- the “nub” of
plaintiff’s complaint -- “to determine if [those allegations] plausibly suggest an entitlement to

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Northern District of California

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relief.” Id. Plaintiff’s counsel appears to concede there are few if any of these in the complaint.

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See, e.g., Dkt. No. 41 at 7 (“paragraphs 29-33 allege that the uniformed enforcement personnel

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detained plaintiff for over 50 hours, interrogated plaintiff about drug trafficking and writing bad

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checks, failed to provide basic [sic], and forced him to complete paperwork purportedly releasing

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defendants of liability”); id. at 9 (“Plaintiff provides six (6) paragraphs of facts known to plaintiff.

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In short, Mr. Contawe was incarcerated for two nights totaling over 50 hours. Mr. Contawe was at

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a prison in defendant’s county where he was staying in agony due to not receiving proper medical

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care necessary for a 79 year old recuperating from surgery.”). But these allegations are too thin to

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survive.

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As the Supreme Court has stated, “[d]etermining whether a complaint states a plausible

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claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense. But where the well-pleaded facts do not permit the court

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to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not

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‘show[n]’ -- ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 678 (internal citations

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omitted). This is where even the well-pleaded factual allegations in plaintiff’s complaint still

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come up very short. In the Court’s judicial experience and common sense, government officers do

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not suddenly come storming onto airplanes and pull a 79-year-old man out of his seat, taking him

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into detention and under interrogation for “drug trafficking and writing bad checks,” without so

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much as giving a superficial reason for such out-of-the-ordinary conduct.

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Many questions should at least be anticipated in the complaint: What were the
circumstances of the officers coming on board and taking plaintiff with them? What did they tell

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him about why he needed to come with them? Why does plaintiff say he was interrogated “about

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being a suspect in drug trafficking and writing bad checks”? What did the officers say to him that

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made him draw that conclusion? Did they say anything at all about how they believed plaintiff

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was connected to those activities? What were the circumstances and nature of his detention and

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interrogation? What kind of room was plaintiff in? Was there a bed? Were other people being

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detained there, too? How did plaintiff’s brother know to come and pick him up? Who called the

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Northern District of California

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brother and what did they say to him? Why does plaintiff say he was not provided with sufficient

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medical care? What care did he need or ask for, and what care was he denied?

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This is a non-exhaustive list of the types of pertinent facts plaintiff has left wholly

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unaddressed. Although plaintiff need not allege evidentiary facts akin to what would be required

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to defeat summary judgment, he must do much more than he has done here. Without any facts of

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the types listed above, the complaint as pled has tendered only “naked assertions devoid of further

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factual enhancement,” and as such, it is insufficient. Iqbal, 556 U.S. at 678 (internal quotation

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marks and citation omitted); see also Blantz v. Cal. Dep’t of Corr. and Rehab., 727 F.3d 917, 927

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(9th Cir. 2013) (finding that “common sense requires us to reject the allegation that the Chief

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Medical Officer for the state-wide prison system . . . was personally involved in the decision to

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terminate [plaintiff] as an independent contractor nurse at Calipatria state prison or to give her a

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negative job reference,” and concluding Rule 8 pleading standard was not met “[i]n light of the

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threadbare allegations of Hill’s personal involvement and the inherent implausibility of the

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allegations”). Is it possible that plaintiff, at age 79 and while onboard an airplane, was pulled off

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and detained and interrogated for more than two days for no apparent reason? Possible, yes, but

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without “further factual enhancement,” plaintiff has not “nudged his claims . . . across the line

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from conceivable to plausible.” Iqbal, 556 U.S. at 680.

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Plaintiff does not really deny the paucity of his factual allegations, and he in fact
acknowledges it and even tries to play it in his favor. He claims that “[t]he failure to recall

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specifics tends to support that plaintiff is so distraught that he wishes to not relive these events

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brought on by defendants’ unwarranted and malicious conduct.” Dkt. No. 43 at 11. He argues

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that his complaint as alleged is sufficient, and that “[f]urther facts in support of the complaint can

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be obtained through discovery.” Id. at 5. But once again, plaintiff has the standard wrong. The

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notice-pleading standard under Rule 8 “does not unlock the doors of discovery for a plaintiff

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armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. The burdens of discovery

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are of particular concern in suits against government officials who may be entitled to assert the

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defense of qualified immunity. “The basic thrust of the qualified-immunity doctrine is to free

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Northern District of California

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officials from the concerns of litigation, including ‘avoidance of disruptive discovery,’” and if “a

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government official is to devote time to his or her duties, and to the formulation of sound and

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responsible policies, it is counterproductive to require the substantial diversion that is attendant to

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participating in litigation and making informed decisions as to how it should proceed.” Id. at 685.

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Consequently, where, as here, plaintiff’s “complaint is deficient under Rule 8, he is not entitled to

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discovery, cabined or otherwise.” Id. at 686.

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Plaintiff’s complaint asserts ten claims for relief, and because all ten claims rest on the

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essential factual allegations that the Court has found to be insufficient, the Court dismisses the

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entire complaint on this basis. Although defendants’ motions to dismiss present additional legal

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arguments specific to various claims, the Court finds it unnecessary to reach those arguments at

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this time.

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CONCLUSION
The Court grants defendants’ motions and dismisses plaintiff’s complaint because it fails
to sufficiently plead a claim under Rule 8 of the Federal Rules of Civil Procedure.

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Plaintiff will be given one final chance to amend his complaint. To go forward, any

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amended complaint must move plaintiff’s claims across the line from conceivable to plausible, and

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toward that end, the Court strongly encourages plaintiff to add the kinds of factual allegations

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described in this order. The Court also again instructs plaintiff that any further amended
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complaint must make clear -- in the complaint itself, and not in a motion to dismiss opposition

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brief -- whether plaintiff is currently alive, whether he was alive at the time the initial complaint

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was filed, and if he is not currently alive, why these claims survive his death. If plaintiff is indeed

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alive as he says he is, any references to his loss of life must be removed from the complaint. Any

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amended complaint must be filed by January 20, 2016. No new claims or defendants may be

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added without the Court’s prior approval.

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If plaintiff does file an amended complaint and defendants choose once again to move to

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dismiss it, then the two sets of defendants are requested to file a joint motion to dismiss. The

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defendants may make a request (after meeting and conferring with plaintiff) if they need more
pages or more time to make that happen. Because there are two sets of defendants and ten claims

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Northern District of California

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for relief, defendants are also encouraged to summarize their arguments by claim and by defendant

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in chart form in an attachment to their joint motion to dismiss.

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The Court notes that in this round of briefing, there were a number of legal arguments

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made by defendants to which plaintiff did not respond. The Court advises plaintiff that should

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there be a third round of motions to dismiss, the Court will deem conceded any arguments of

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defendants to which plaintiff has not meaningfully responded.

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IT IS SO ORDERED.
Dated: December 23, 2015

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________________________
JAMES DONATO
United States District Judge

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