Daniel Mancini v. City of Cloverdale Police Department et al

Filing 7

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Jacqueline Scott Corley on 6/30/2015. (ahm, COURT STAFF) (Filed on 6/30/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

DANIEL MANCINI,

Case No. 15-cv-02804-JSC

Plaintiff,
8
v.
9
10

United States District Court
Northern District of California

11

CITY OF CLOVERDALE POLICE
DEPARTMENT, et al.,

ORDER GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS
AND DISMISSING COMPLAINT WITH
LEAVE TO AMEND
Re: Dkt. No. 2

Defendants.

12
13

Plaintiff Daniel Mancini brings this action against the City of Cloverdale Police

14

Department, Cloverdale Police Officer Michael Campbell (“Officer Campbell”), and non-officers

15

Kenneth Roux, Rebecca Roux, Adam Alvarek, and a number of Doe Defendants (collectively,

16

“Defendants”), bringing claims of negligence, false imprisonment, assault and battery, and

17

conspiracy to interfere with civil rights pursuant to 42 U.S.C. § 1985. The gravamen of Plaintiff’s

18

complaint is that Kenneth Roux and Alvarek attacked Plaintiff after falsely accusing him of

19

burgling Kenneth Roux’s body shop, and that when Plaintiff reported the incident to Officer

20

Campbell, he conspired with Kenneth Roux and Alvarek to cover up their crime and ensure that

21

they were not prosecuted. Before the Court is Plaintiff’s Application to Proceed In Forma

22

Pauperis. (Dkt. No. 2.) The Court must also review the complaint allegations under 28 U.S.C.

23

§ 1915. As set forth below, the Court GRANTS Plaintiff’s application to proceed IFP and

24

DISMISSES the complaint with leave to amend.

25
26

COMPLAINT ALLEGATIONS
The allegations in the complaint arise out of false accusations that Plaintiff committed a

27

burglary of the Roux Body Shop in Cloverdale, California. (Dkt. No. 1 ¶ 10.) Defendant Kenneth

28

Roux (“Roux”) owns the Roux Body Shop (the “Body Shop”). (Id.) Defendant Alvarek

1

(“Alvarek”) is associated with the Roux Body Shop, is a friend and “hit man” or “muscle man” of

2

Roux, and is a member of the “Ghost Riders” or “Ghost Warriors” motorcycle gang. (Id. ¶¶ 10,

3

11, 18.) A burglary occurred at the Body Shop on October 31, 2014 in which a safe was stolen.

4

(Id. ¶¶ 11, 19.) Plaintiff did not commit the burglary, as he spent the night at home. (Id. ¶¶ 11,

5

17.)
Shortly after the burglary, Kenneth Roux—armed with a 9 millimeter handgun—

7

approached Plaintiff and accused him of committing the burglary. (Id.) On November 12 or 13,

8

Alvarek came to Plaintiff’s home in Cloverdale and told Plaintiff that he had to go with Alvarek to

9

the Roux Body Shop to discuss the burglary. (Id.) Plaintiff, intimidated and feeling like he had no

10

choice, went with Alvarek. (Id.) At the Body Shop, Roux and Alvarek placed Plaintiff in a “spray

11
United States District Court
Northern District of California

6

booth”; there, Roux pulled out a handgun, put on leather gloves, and both men hit, kicked, and

12

stomped on Plaintiff. (Id.) Plaintiff suffered a severely damaged left eye and injured his neck and

13

back. (Id. ¶¶ 11, 13.) Roux threatened Plaintiff that he “was going to be taken to a wood chipper

14

where he would be chipped and killed for doing the burglary[,]” then told Plaintiff that he had

15

once chance to get the stolen item back within two hours. (Id. ¶ 11.)
After leaving the Body Shop, Plaintiff went to speak with others to find out who

16
17

committed the burglary. He learned that Roux and Alvarek claimed to have a video of the

18

burglary that showed that the SUV involved in the burglary belonged to Brenda.1 (Id. ¶ 12.)

19

Apparently Plaintiff and his wife and Roux and his wife, Beck, viewed the video together, which

20

showed that the SUV was not actually Brenda’s. (Id.) Roux admitted that he had made a mistake

21

and would tell Alvarek to “back off.” (Id.)
Plaintiff reported the assault by Roux and Alvarek to Officer Campbell of the Cloverdale

22
23

Police Department. (Id. ¶ 14.) Brenda identified Roux and Alvarek in police photos, and also

24

stated that she was afraid that Roux would be violent towards her and she was afraid of testifying

25

against him. (Id. ¶¶ 14, 20.) In addition, Plaintiff filed a police report about the incident; the

26
1

27
28

It is not clear in the complaint who Brenda is: in one instance she is named as Brenda Mancini,
Plaintiff’s wife, but elsewhere Plaintiff alleges that Brenda Norbert is the mother of Plaintiff’s
daughter, while Plaintiff’s wife’s name is Arlene Mancini. (Compare Dkt. No. 1 ¶ 12, with id.
¶ 16.)
2

1

Cloverdale Police Department would not give Plaintiff a copy, but Plaintiff learned from Officer

2

Campbell’s supervisor that most of the information Plaintiff had given the officer was not

3

included in the report. (Id. ¶ 15.) Officer Campbell placed a wire on Plaintiff to record statements

4

that Roux made, but Roux denied having any knowledge of the assault. (Id. ¶ 15.) When the

5

police spoke to Roux, he denied knowing Plaintiff. (Id.) At some point, Officer Campbell

6

informed Plaintiff that they knew who had committed the burglary and it was not Plaintiff. (Id.)

7

As it turned out, Officer Campbell is a friend of Roux and had his personal car in Roux’s

8

shop. (Id.) In fact, Roux did the body work for the Cloverdale Police Department, as well. (Id.

9

¶ 20.) As of the filing of the complaint, Plaintiff has repeatedly requested that the Cloverdale
Police Department and Sonoma County District Attorney to prosecute Roux and Alvarek for the

11
United States District Court
Northern District of California

10

assault, but no action has been taken. (Id. ¶ 2.)
Plaintiff filed the four-count complaint on June 22, 2015. Plaintiff brings three counts

12
13

against Roux and Alvarek for negligence, false imprisonment, and assault and battery. In

14

addition, Plaintiff brings one count of conspiracy to interfere with civil rights under 42 U.S.C.

15

§ 1985 against Roux, his wife, Alvarek, the City of Cloverdale, the Cloverdale Police Department,

16

and Officer Campbell for conspiring to interfere with Plaintiff’s civil rights by covering up the

17

crimes of Roux and Alvarez and refusing to prosecute them.
DISCUSSION

18
19

A.

Application to Proceed In Forma Pauperis
Plaintiff moves to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. (Dkt. No.

20
21

2.) The Court finds that Plaintiff has shown good cause that he is unable to pay the filing fee

22

associated with initiating this action. Accordingly, the Court GRANTS Plaintiff’s request to

23

proceed IFP.

24

B.

Section 1915 Review

25

1.

Legal Standard

26

The Court must dismiss an in forma pauperis (“IFP”) complaint before service of process

27

if it is frivolous, fails to state a claim, or contains a complete defense to the action on its face. 28

28

U.S.C. § 1915(e)(2). The Court retains discretion over the terms of dismissal, including whether
3

1

to grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Because this is a

2

pro se civil rights case, the Court must notify Plaintiffs of the deficiencies in the complaint and

3

provide an opportunity to amend prior to dismissal, unless it is completely clear that the

4

deficiencies of the complaint cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.

5

1987) (superseded on other grounds by statute as stated in Lopez, 203 F.3d 1122, 1138 (Rymer,

6

J., concurring)).

7

Regarding dismissals for failure to state a claim, Section 1915(e)(2) parallels the language
of Federal Rules of Civil Procedure 12(b)(6). Lopez, 203 F.3d at 1127. In considering a motion to

9

dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the Court

10

must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89,

11
United States District Court
Northern District of California

8

94 (2007), and construe the pleading in the light most favorable to the plaintiff, see Scheuer v.

12

Rhodes, 416 U.S. 232, 236 (1974). To avoid dismissal, a complaint must contain more than

13

“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

14

of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). Indeed, “[t]hreadbare

15

recitals of the elements of a cause of action, supported by mere conclusory statements do not

16

suffice.” Id. Furthermore, a claim upon which a court can grant relief must have facial

17

plausibility. Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content

18

that allows the court to draw the reasonable inference that the defendant is liable for the

19

misconduct alleged.” Id. at 556. A complaint must also comply with Rule 8(a)(2), which requires

20

that the complaint contain a “short and plain statement of the claim showing that the pleader is

21

entitled to relief.” See, e.g., Cromer v. Unknown, No. CV 13-4963-CJC(OP), 2014 WL 3101410,

22

at *3-4 (C.D. Cal. July 2, 2014).

23

In addition, on Section 1915 review the Court also has an independent obligation to

24

determine that it has subject matter jurisdiction over an action. United States v. Moreno-Morillo,

25

334 F.3d 819, 830 (9th Cir. 2003).

26

2.

Discussion

27

Upon review, the Court concludes that Plaintiff has stated a claim for at least some of his

28

common law counts against Roux and Alvarek, and therefore the claims against these individual
4

1

defendants pass muster under Section 1915 and could proceed to service. However, the same is

2

not true of Plaintiff’s Section 1985 conspiracy count. Absent the Section 1985 claim, there would

3

be only state law claims before the Court, and therefore supplemental jurisdiction in federal court

4

may not be appropriate. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (“[W]hen

5

the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims

6

remain, the federal court should decline the exercise of jurisdiction by dismissing the case without

7

prejudice.”); Wren v. Sletten Constr. Co., 654 F.2d 529, 536 (9th Cir. 1981) (“When the state

8

issues apparently predominate and all federal claims are dismissed . . . the proper exercise of

9

discretion requires dismissal of the state claim.”).

10

Plaintiff’s fourth count alleges that all defendants “knowingly and willfully conspired and

United States District Court
Northern District of California

11

agreed among themselves to cover up the crimes of Roux and Alvarek and refuse to prosecute

12

Roux and Alvarek for the crimes they committed upon [Plaintiff].” (Dkt. No. 1 ¶ 47.) As written,

13

this count suffers from a host of defects.

14

First, Section 1985 “creates no independent cause of action and provides remedial relief

15

only after a violation of a specifically defined and designated federal right is first established.”

16

Harmon v. City of Fresno, No. CV F 08-1311 LJO GSA, 2008 WL 4690897, at *9 (E.D. Cal. Oct.

17

21, 2008).

18

Second, there are three different prongs of conspiracy to violate civil rights under 42 U.S.C

19

§ 1985: (1) conspiracy to prevent an officer from performing duties; (2) conspiracy to obstruct

20

justice, intimidate a party, witness, or juror; and (3) conspiracy to deprive persons of rights or

21

privileges. The allegations in Count Four do not indicate which subsection Plaintiff alleges, which

22

fails to comply with Plaintiff’s obligation under Rule 8(a)(2). See Cromer, 2014 WL 3101410, at

23

*3-4. However, elsewhere in the complaint it seems that Plaintiff is proceeding under the second

24

and third subsections, as he alleges that Defendants conspired “to violate [Plaintiff’s]

25

constitutional rights by obstructing justice, intimidating a party, intimidating a witness and by

26

depriving [Plaintiff] of his constitutional rights by suppressing criminal charge[s that] should have

27

been filed against [Roux] and Alvarek.” (Dkt. No. 1 ¶ 2.) Thus, assuming for the purposes of

28

Section 1915 review that Plaintiff brings his claims under subsections (2) and (3), the Court will
5

1
2

address the sufficiency of the claims.
Section 1985(2) gives rise to a cause of action where

3

two or more persons conspire for the purposes of impeding,
hindering, obstructing, or defeating, in any manner, the due course
of justice in any State or Territory, with intent to deny to any citizen
the equal protection of the laws[.]

4
5
6

In contrast, the first clause concerns access to federal courts, and gives rise to a cause of action

7

where persons

8
9
10

conspire [A] to deter, by force, intimidation, or threat, any part or
witness in any court of the United States from attending such court,
or from testifying to any matter pending therein . . . or [B] to injure
such party or witness in his person or property on account of his
having so attended or testified.

11
United States District Court
Northern District of California

The Ninth Circuit has clarified that the former clause pertains to state courts, whereas the latter
12
pertains to federal courts. Portman v. Cnty. of Santa Clara, 995 F.2d 898, 908-09 (9th Cir. 1993);
13
Dooley v. Reiss, 736 F.2d 1392, 1395 (9th Cir. 1984). Here, of course, Plaintiff does not indicate
14
the clause under which he proceeds, but because his claims involve a local police department and
15
the Sonoma County District Attorney, the Court concludes that the state-court clause applies. In
16

addition, Section 1985(3) bars conspiracies to “depriv[e], either directly or indirectly, any person

17
or class of persons of the equal protection of the laws, or of equal privileges and immunities under
18
19

the laws[.]” Claims brought under either of these provisions require a showing of class-based
animus. See Senator v. City of Orange Police Dep’t, 324 F. App’x 624, 624 (9th Cir. 2009)

20
(citations omitted); see also Caldeira v. Cnty. of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989)
21
(claims under § 1985(3) require a showing of class-based animus); Portman v. Cnty. of Santa
22
Clara, 995 F.2d 898, 908-09 (9th Cir. 1993) (claims under the federal-court clause of § 1985(2)
23
require a showing of denial of access to the federal courts, whereas claims under the state-court
24
clause of § 1985(2) require a showing of class-based animus). Here, Plaintiff has not included
25
any allegations that he is a member of a protected class or that Defendants acted with animus
26
based on his membership in such a class when they engaged in the alleged conspiracy. While
27

equal protection claims may be brought by a “‘class of one,’ where the plaintiff alleges that []he

28
6

1

has been intentionally treated differently from others similarly situated and that there is no

2

rational basis for the difference treatment[,]” Village of Willowbrook v. Olech, 528 U.S. 562, 564

3

(2000), Plaintiff has not alleged as much here. Thus, the conspiracy claim fails to state a claim on

4

this ground.
Third, some of the defendants are problematic. There are not enough facts from which the

5
6

Court can draw a plausible inference that Defendant Rebecca Roux was involved in any such

7

conspiracy.2 The only fact alleged pertaining to Rebecca Roux is that she was present when

8

Plaintiff and his wife viewed the video of the burglary with Kenneth Roux. (Dkt. No. 1 ¶ 12.)

9

There are no other facts alleged regarding her involvement with Plaintiff or her interactions with
the police. Aside from the conclusory allegation that she “furthered the conspiracy by

11
United States District Court
Northern District of California

10

cooperation with or lent aid and encouragement” to the acts of the others, there are no facts that

12

plausibly suggest that Roux ever agreed to enter a conspiracy with the other defendants. See

13

Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930 (9th Cir. 2004) (dismissing § 1985

14

conspiracy claim where the complaint was “devoid of any discussion of an agreement amongst

15

the [defendants] to violate [the plaintiff’s] constitutional rights”). In addition, the City of

16

Cloverdale Police Department is not a proper defendant in a Section 1985 claim, as a municipal

17

agency is not a “person” within the meaning of federal civil rights statutes. 3 See Will v. Mich.

18

Dep’t of State Police, 491 U.S. 58, 71 (1989); Staples v. Franchise Tax Bd., 302 F. App’x 651,

19

652 (9th Cir. 2008) (citation omitted).
For each of these reasons, Plaintiff’s Section 1985 conspiracy count is insufficiently

20
21

pleaded for the purposes of Section 1915. Although Plaintiff’s counts against Roux and Alvarek

22

are passable, because this is the only claim against Officer Campbell, the City of Cloverdale, and

23
24
25
26
27
28

2

The complaint is inconsistent about the name of Roux’s wife, calling her Rebecca Roux, Beck
Roux, and Brenda Roux. (Dkt. No. 1 ¶¶ 1-2, 12, 49.) The Court assumes that Rebecca is the
proper name, as this is the name listed in the caption.
3

The Ninth Circuit has not yet decided whether a government employee can conspire with its own
government under the intra-corporate conspiracy doctrine. See Fakoya v. Cnty. of Clark, No.
2:12-cv-02149-JAD-CWH, 2014 WL 5020592, at *7 (D. Nev. Oct. 8, 2014). The Court need not
decide whether the City of Cloverdale can conspire with Officer Campbell because Plaintiff here
does not allege enough facts to give rise to a plausible conspiracy claim against any Defendant.
7

1

the City of Cloverdale Police Department, the Court declines to proceed to service by the U.S.

2

Marshal at this time as exercise of supplemental jurisdiction over these purely state-law claims

3

would be inappropriate. Plaintiff shall have leave to file an amended complaint to cure the defects

4

with the fourth count consistent with the discussion above.

5

CONCLUSION

6

The Court GRANTS Plaintiff’s IFP application. Plaintiff’s common law counts against

7

Roux and Alvarek state a claim, but his Section 1985 conspiracy count does not. Plaintiff is

8

granted leave to amend the fourth count against all defendants except for the City of Cloverdale

9

Police Department, which is dismissed from this action with prejudice. Plaintiff’s amended
complaint is due by July 21, 2015. Failure to amend will result in dismissal of count four—and of

11
United States District Court
Northern District of California

10

Officer Campbell, the City of Cloverdale, Rebecca Roux, and the City of Cloverdale Police

12

Department—with prejudice, and dismissal of the state law claims without prejudice.

13
14
15
16

IT IS SO ORDERED.
Dated: June 30, 2015
______________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

17
18
19
20
21
22
23
24
25
26
27
28
8