Curtis Johnson et al v. City of Berkeley et al

Filing 77

ORDER by Magistrate Judge Jacqueline Scott Corley granting 67 MOTION TO DISMISS AND STRIKE THE THIRD AMENDED COMPLAINT. (ahm, COURT STAFF) (Filed on 8/9/2016)

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1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 14 MONI LAW, et al., Plaintiffs, 15 16 17 18 Case No. 15-cv-05343-JSC v. CITY OF BERKELEY, et al., Defendants. ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND STRIKE THE THIRD AMENDED COMPLAINT AND GRANTING LEAVE TO FILE FOURTH AMENDED COMPLAINT Re: Dkt. No. 67 19 20 This lawsuit arises out of a racial justice protest in Berkeley, California. Plaintiffs 21 challenge the City of Berkeley and the Berkeley Police Department’s response to the protest and 22 allege that, among other things, they were subject to excessive force and violation of their First 23 Amendment rights. Now pending before the Court is Berkeley’s motion to dismiss claims in the 24 Third Amended Complaint for lack of standing pursuant to Federal Rule of Civil Procedure 25 12(b)(1) and to strike certain allegations pursuant to Federal Rule of Civil Procedure 12(f). 26 Having considered the parties’ submissions, the Court concludes that oral argument is 27 unnecessary, see Civ. L.R. 7-1(b), and DENIES the motion. The Court also finds good cause to 28 GRANT Plaintiffs leave to file the Fourth Amended Complaint. (Dkt. No. 70.) 1 2 FACTUAL ALLEGATIONS This lawsuit arises out of a demonstration on December 6, 2014 in Berkeley, California. 3 Plaintiffs are eight individuals who attended the demonstration, March Against State Violence, 4 either as protesters or journalists. (Third Amended Complaint (Dkt. No. 62) at ¶¶ 1-3, 13-21; Dkt. 5 No. 69 (granting stipulation to dismiss claims of three plaintiffs).) The Berkeley Police 6 Department sent officers to the demonstration and requested mutual aid from nearby law 7 enforcement agencies when they learned about the protest. (Id. at ¶¶ 3-5.) Pursuant to this request, 8 the Hayward Police Department and several other law enforcement agencies responded and 9 assisted Berkeley in policing the demonstration. (Id. at ¶ 42.) 10 The demonstration began around 5:00 p.m. on the University of California, Berkeley United States District Court Northern District of California 11 campus and then proceeded down Telegraph Avenue to the Public Safety Building at 2100 Martin 12 Luther King, Jr., Way. (Id. at ¶ 43.) Berkeley police officers blocked the demonstration once it 13 reached 2100 Martin Luther King, Jr., Way and used batons to “hit and push any demonstrators 14 who entered an unmarked, unannounced ‘safety zone.’” (Id.) Although Plaintiffs were peacefully 15 participating in the demonstration either as protesters or journalists documenting the march, 16 Berkeley police officers repeatedly struck them with batons, and in some instances, deployed tear 17 gas. (Id. ¶¶ 44-70.) In addition, Plaintiff Watkins was arrested and spent the night in jail although 18 he had done nothing wrong. (Id. at ¶ 66.) 19 Plaintiffs contend that this unlawful use of force is “the proximate result of a custom, 20 policy, pattern or practice of deliberate indifference by defendant City of Berkeley to the repeated 21 violations of the constitutional rights of citizens by defendant City of Berkeley’s police officers, 22 which have included, but are not limited to, the repeated use of excessive force, racial profiling, 23 and the repeated failure to properly and/or adequately train, supervise and/or discipline officers 24 with respect to the use of excessive force, constitutional limitations on the use of force, City 25 policies on use of weapons and force, and racial profiling; the repeated failure by City of Berkeley 26 high ranking officials, police department managers and/or supervisors to hold officers accountable 27 for violating the rights of citizens; and/or other customs, policies and/or practices.” (Id. at ¶ 80.) 28 Berkeley Police Chief Michael Meehan is an “authorized policymaker” for the City of Berkeley 2 1 who “set in motion, supervised, directed, approved, and acquiesced in the constitutional 2 violations.” (Id. at ¶ 23.) Berkeley Police Captain Erik Upson was the Incident Commander in 3 charge of Berkeley and the mutual aid police response who was on scene and “supervised, 4 directed, approved, acquiesced, and failed to intervene in officer’s constitutional violations” along 5 with senior officers Andrew Rateaver and Rico Rolleri. (Id. at ¶¶ 24-26.) Upson and Rolleri 6 failed to instruct or supervise the mutual aid responders which included Hayward police officers 7 who brought “Specialty Impact Munitions” with them despite “state and local law which required 8 Berkeley to remain in charge and take direct supervisory responsibility for all mutual aid units.” 9 (Id. at ¶¶ 24, 26, 42.) 10 United States District Court Northern District of California 11 PROCEDURAL HISTORY Plaintiffs filed this action nearly a year after the at-issue protest naming both the City of 12 Berkeley and several individual Berkeley police officers as Defendants as well as the City of 13 Hayward, Hayward Chief of Police Diane Urban, and Hayward Police Lieutenant Bryan 14 Matthews. (Dkt. No. 1.) Before any Defendants answered or appeared, Plaintiffs filed an 15 amended complaint. (Dkt. No. 18.) Both the Hayward and the Berkeley Defendants moved to 16 dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. Nos. 22 & 23.) These 17 motions were granted in part and denied in part and Plaintiffs thereafter filed the Second Amended 18 Complaint. (Dkt. Nos. 44, 45 & 49.) Plaintiffs subsequently resolved their claims with the 19 Hayward Defendants and the Court granted Plaintiffs leave to file the now operative Third 20 Amended Complaint (“TAC”). (Dkt. Nos. 60 & 62.) 21 The TAC names the City of Berkeley, Michael Meehan as the Chief of Police for the City 22 of Berkeley, and several Berkeley police officers (collectively, “Berkeley”). (Dkt. No. 62.) 23 Plaintiffs assert seven claims for relief: (1) violation of their Fourth Amendment rights under 42 24 U.S.C. § 1983; (2) violation of their First Amendment rights under 42 U.S.C. § 1983; (3) false 25 arrest and false imprisonment; (4) assault and battery; (5) violation of California Civil Code § 26 51.7; (6) violation of California Civil Code § 52.1; and (7) negligence. (Id. at ¶¶ 88-113.) The 27 Third Amended Complaint is filed as a putative class action seeking injunctive and declaratory 28 relief on behalf of a class of “all persons who wish to participate in or report on public 3 1 demonstrations in the City of Berkeley.” (Id. at ¶ 34.) In response to the TAC, Defendants filed the underlying motion to dismiss and strike 2 3 portions of the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).1 4 (Dkt, No. 67.) Five days later, Plaintiffs filed a Fourth Amended Complaint. (Dkt. No. 70.) 5 However, Plaintiffs thereafter timely filed an opposition to Berkeley’s motion which notes that 6 Plaintiffs misread Federal Rule of Civil Procedure 15 to allow a Fourth Amended Complaint as of 7 right. Plaintiffs contend that the TAC is adequate and also seek leave to file the Fourth Amended 8 Complaint should the Court find any deficiencies in the TAC. (Dkt. No. 74.) 9 DISCUSSION 10 Defendants’ motion raises three primary arguments. First, Defendants move to strike United States District Court Northern District of California 11 Plaintiffs’ class allegations contending that the proposed class is not adequately defined and 12 Plaintiffs have not adequately alleged the prerequisites for a class action under Federal Rule of 13 Civil Procedure 23(a) or (b)(2). Second, Defendants move to dismiss Plaintiffs’ claims for 14 injunctive and declaratory relief for lack of standing. Finally, Defendants move to strike 15 Plaintiffs’ allegations regarding injuries from mutual aid agencies, specialty impact munitions, and 16 racial profiling. None of these arguments are availing. 17 A. Defendants’ Motion to Strike Class Allegations is Procedurally Flawed 18 Defendants move to strike Plaintiffs’ class allegations pursuant to Federal Rule of Civil 19 Procedure 12(f). Under Rule 12(f), the “court may strike from a pleading ... any redundant, 20 immaterial, impertinent, or scandalous matter.” Defendants have not cited, and the Court is not 21 aware, of any Ninth Circuit Court of Appeals case concluding that Rule 12(f) is an appropriate 22 vehicle for resolving the propriety of class claims. This lack of case law support is unsurprising 23 given that in the Ninth Circuit a motion to strike may only be granted where the allegations in 24 question are “(1) an insufficient defense; (2) redundant; (3) immaterial; (4) impertinent; or (5) 25 scandalous.” Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973–74 (9th Cir. 2010). None 26 of Defendants’ arguments fall within one of these categories. See, e,g, Tasion Commc’ns, Inc. v. 27 1 28 That same day, the parties filed a stipulation to dismiss the claims of two of the Plaintiffs and four of the individual defendants which the Court granted. (Dkt. Nos. 66 & 69.) 4 1 Ubiquiti Networks, Inc., 2014 WL 1048710 at *3-4 (N.D. Cal. March 14, 2014) (concluding that 2 Rule 12(f) is not the proper procedural vehicle for challenging class claims). 3 Some district courts within the Ninth Circuit have entertained Rule 12(f) motions to strike 4 class allegations. They note, however, that such motions are disfavored and “apply a very strict 5 standard”: “[o]nly if the court is convinced that any questions or law are clear and not in dispute, 6 and that under no set of circumstances could the claim or defense succeed may the allegations be 7 stricken.” Roy v. Wells Fargo Bank, N.A., No. 14-CV-04661-SC, 2015 WL 1408919, at *2 (N.D. 8 Cal. Mar. 27, 2015) (internal quotation marks and citations omitted). Even if the Court were to 9 conclude that Rule 12(f) is an appropriate procedure to challenge the class allegations here, 10 United States District Court Northern District of California 11 Defendants have not shown that the class allegations cannot succeed. Plaintiffs seek certification of a Rule 23(b)(2) class which requires that “the party opposing 12 the class has acted or refused to act on grounds that apply generally to the class, so that final 13 injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” 14 Plaintiffs allege that “[b]y ordering officers to use unjustified indiscriminate force on the crowd at 15 the 2014 demonstration, and failing to adopt policies prohibiting such use of excessive force 16 following that event, defendants have acted on grounds generally applicable to the class, so that 17 injunctive and declaratory relief is appropriate respecting the class as a whole.” (TAC ¶ 37.) 18 Plaintiffs also allege that their First Amendment rights, and those of the class, were chilled by 19 these same policies and orders and seek to enjoin further implementation of these policies. (Id. at 20 ¶ 36.) Defendants have not established at this early stage in the proceedings that a (b)(2) class 21 cannot be certified; accordingly, Defendants’ motion to strike the class allegations is denied. 22 B. Defendants’ Standing Arguments are Misplaced 23 Defendants’ related argument that Plaintiffs lack standing to pursue equitable relief 24 claims—for injunctive and declaratory relief—because there is no case or controversy fares no 25 better. “To satisfy Article III’s case or controversy requirement, [a plaintiff] needs to show that he 26 has suffered an injury in fact, that the injury is traceable to the challenged action of [the 27 defendant], and that the injury can be redressed by a favorable decision.” Fortyune v. Am. Multi– 28 Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004). In the injunctive relief context, plaintiffs also 5 1 must demonstrate that there is “a sufficient likelihood that [they] will again be wronged in a 2 similar way—[t]hat is, [t]he[y] must establish a ‘real and immediate threat of repeated injury.’” Id. 3 (internal citation and quotation marks omitted). Defendants contend that Plaintiff cannot do so 4 because they only allege that on information and belief Defendants acted or refused to act in a 5 manner that creates an ongoing controversy. 6 Plaintiffs’ factual allegations are more developed than Defendants suggest. As noted with 7 respect to the adequacy of Plaintiffs’ class claims, Plaintiffs allege that the constitutional 8 violations claimed here are part of a repeated course of conduct by the Defendants because 9 Defendants have not adopted adequate polices. (TAC at ¶ 74.) Further, Plaintiffs allege that they 10 have no plain, adequate or complete remedy at law to address the wrongs described herein. Plaintiffs intend in the future to exercise their constitutional rights of freedom of speech and association by engaging in demonstrations, journalism, documentation of police actions, and other expressive activities in the City of Berkeley. Defendants’ conduct described herein has created fear, anxiety and uncertainty among plaintiffs with respect to their exercise now and in the future of these constitutional rights. United States District Court Northern District of California 11 12 13 14 (Id. at ¶ 84.) 15 16 Plaintiffs’ allegations are not just that they fear they will be subject to excessive force should they engage in future protect activity, but that Defendants’ lack of policies regarding police 17 response to protest activity has chilled their future exercise of their First Amendment rights. As 18 19 20 noted by another court in this district, “allegations showing a plaintiff’s continued intent to engage in protected speech and a governmental entity’s continued efforts to chill such speech may establish a likelihood of future injury sufficient for standing.” Bass v. City of Fremont, No. C12– 21 4943 TEH, 2013 WL 891090, at *9 (N.D.Cal. Mar. 8, 2013); see also Save CCSF Coal. v. Lim, 22 No. 14-CV-05286-SI, 2015 WL 3409260, at *10 (N.D. Cal. May 27, 2015) (concluding that 23 plaintiffs had standing to pursue injunctive relief for their First Amendment claim because it was 24 “plausible that plaintiffs are presently unable to engage in First Amendment activities due to fear 25 of arrest or sanctions and that plaintiffs will be subjected to similar alleged misconduct if they 26 27 attempt to engage in expressive activity...”). Defendants’ attempt to discredit Plaintiffs’ allegations regarding Berkeley’s lack of 28 6 1 policies by seeking judicial notice of the minutes of a Berkeley City Council meeting from 2 February 10, 2015 is unavailing. (Dkt. No. 68.) First, although the minutes are judicially 3 noticeable, all they show is that the city council voted in favor of Councilmember Arreguin’s 4 recommendations for (1) a review of the Berkeley Police Department’s policies and practices 5 regarding crowd control, use of force, and mutual aid on February 10, 2015, and (2) a temporary 6 ban on the use of chemical agents, specialty impact munitions, and over the shoulder baton strikes, 7 but not that they actually took any action or the current status of this issue. See In re Bare 8 Escentuals, Inc. Sec. Lit., 745 F. Supp. 2d 1052, 1067 (N.D. Cal. 2010) (holding that although the 9 Court “may take judicial notice of the existence of unrelated court documents...it will not take judicial notice of such documents for the truth of the matter asserted therein.” ). Second, in White 11 United States District Court Northern District of California 10 v. Lee, 227 F.3d 1214 (9th Cir. 2000), the Ninth Circuit held that the defendant’s recent 12 implementation of a policy which addressed the plaintiffs’ request for injunctive relief was 13 insufficient to defeat standing at the pleading stage because “implementation of such a temporary 14 policy was insufficient to eliminate the plaintiffs’ standing to seek prospective relief.” Id. at 1243. 15 So too here. That the City Council voted in favor of review of the polices in February 2015 and 16 placed a temporary ban on the use of the some of the practices challenged here says nothing about 17 what has happened over the course of the last 18 months and does not eliminate Plaintiffs’ request 18 for prospective injunctive relief.2 Defendants’ motion to dismiss Plaintiffs equitable relief claims is therefore denied. 19 20 21 22 2 23 24 25 26 27 28 To the extent that Defendants seek to introduce additional documents bolstering these arguments on reply, they are untimely. See World Lebanese Cultural Union, Inc. v. World Lebanese Cultural Union of New York, Inc., No. No 11-01442 SBA, 2011 WL 5118525, at *6 (N.D. Cal. Oct. 28, 2011)(“New evidence or analysis presented for the first time in a reply is improper and will not be considered.”). Further, although Defendants nowhere reference the legal standard governing a motion to dismiss for lack of standing under Federal Rule of Civil Procedure 12(b)(1), such an attack can be facial or factual. See White v. Lee, 227 F.3d at 1242. Defendants’ opening brief focused on the adequacy of Plaintiffs’ factual allegations and was thus a facial attack; Defendants thus cannot now convert their attack into a factual attack and ask the Court to review new evidence and arguments not presented in their moving papers. 7 1 C. Defendants’ Motion to Strike Particular Allegations is Unpersuasive 2 Lastly, Defendants move to strike any allegations which reference injuries from mutual aid 3 agencies, specialty impact munitions, and racial profiling. For example, Defendants move to 4 strike the allegation that “[a]t about 9:40 p.m., the Berkeley Police and mutual aid officers began 5 jabbing and hitting peaceful crowd members with clubs, ordering them to move and physically 6 pushing them south on Telegraph, even though another line of officers to the south was blocking 7 their egress.” (TAC at ¶ 58.) They also object to numerous paragraphs which reference mutual 8 aid officers, the use of specialty impact munitions, and racial profiling in addition to the many 9 other issues for which Plaintiffs allege inadequate policies and practices. See, e.g., id. at ¶ 7 (“polices and/or practices encouraged...failure to report use of excessive force...prevent the use of 11 United States District Court Northern District of California 10 excessive force...the violation of their rights to free speech, freedom of association and freedom of 12 the press by City of Berkeley and by mutual aid police officers during demonstrations; the use of 13 chemical agents and Specialty Impact Munitions against non-violent persons; racial profiling of 14 people of color...”); id. at ¶ 23 (Defendant Meehan allegedly “set in motion, supervised, directed, 15 approved, and acquiesced in police officers’ constitutional violations at the December 6, 2014, 16 demonstration, including but not limited to the use of excessive force and deprivation of the 17 plaintiffs’ First Amendment rights by Berkeley and mutual aid officers.”). Finally, Defendants 18 take issue with allegations that “Berkeley requested mutual aid from nearby agencies...Hayward 19 Police brought ‘less lethal” Specialty Impact Munitions...[and that] [d]espite state and local law 20 which required Berkeley to remain in charge and take direct supervisory responsibility...failed to 21 supervise the mutual aid officers or instruct them on Berkeley’s use of force policies or on 22 constitutional limits on the use of force, and did not control, inventory or in any way track their 23 use of [force].” Id. at ¶ 42. 24 Defendants do not move to dismiss any claims based on these allegations, but rather, 25 object to the inclusion of language referring to mutual aid, specialty impact munitions, and racial 26 profiling because Plaintiffs “concede” they were not injured as a result of any of these allegations. 27 In response, Plaintiffs contend that with respect to the mutual aid officers, they cannot say with 28 certainty at this point which officers and/or agencies were responsible for each of the acts alleged 8 1 in the complaint for Plaintiffs Dang, Shabazz, and Loux. Further, Plaintiffs contend that the 2 allegations regarding specialty impact munitions are relevant because Plaintiffs and members of 3 the class were subject to repeated threats regarding use of force and specialty impact munitions. 4 As for the racial profiling references, Plaintiffs suggest in their opposition brief that “defendants’ 5 use of force against the Black plaintiffs may have been racially motivated, given the recently 6 released statistics which show stark racial disparities in BPD’s stops.” (Dkt. No. 74 at 22:14-17.) 7 These allegations, however, are not in the TAC or the proposed Fourth Amended Complaint. At bottom, Defendants’ arguments are a challenge to the relevance of Plaintiffs’ 8 9 allegations regarding mutual aid, specialty impact munitions, and racial profiling. “The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from 11 United States District Court Northern District of California 10 litigating spurious issues by dispensing with those issues prior to trial....” SidneyVinstein v. A.H. 12 Robins Co., 697 F.2d 880, 885 (9th Cir.1983). “A court must deny [a] motion to strike if there is 13 any doubt whether the allegations in the pleadings might be relevant in the action.” Oracle Am., 14 Inc. v. Micron Tech., Inc., 817 F. Supp. 2d 1128, 1132 (N.D. Cal. 2011). Conversely then, a court 15 may grant a motion to strike only where “it is clear that the matter to be stricken could have no 16 possible bearing on the subject matter of the litigation.” Rosales v. FitFlop USA, LLC, 882 F. 17 Supp. 2d 1168, 1179 (S.D. Cal. 2012). The Court cannot say at this stage that Plaintiffs’ 18 allegations regarding mutual aid and specialty impact munitions have no possible bearing on the 19 subject matter of this litigation.3 While Plaintiffs’ allegations regarding racial profiling present a 20 closer question, the Court cannot say with certainty that they have no bearing on this action. 21 Further, striking these allegations would run afoul of the rule forbidding courts from reading a 22 motion to strike “in a manner that allow litigants to use it as a means to dismiss some or all of a 23 pleading.” Whittlestone, 618 F.3d at 974; see also Harvey v. Bank of Am., N.A., 906 F.Supp.2d 24 982, 996 (N.D. Cal. 2012) (“Rule 12(f) may not be used to make an end-run around Rule 12(b)(6) 25 standards or summary judgment procedures.”). 26 3 27 28 Further, these allegations are enhanced in the proposed Fourth Amended Complaint wherein Plaintiffs allege that Defendants’ on-going failure to supervise and control mutual aid responders has chilled their First Amended rights (dkt. no. 70 at ¶¶ 11, 41, 43, 74-76, 80), and that they were injured through repeated threats of use of specialty impact munitions (id. at ¶¶ 6, 11, 60, 64). 9 1 2 Defendants’ motion to strike Plaintiffs’ claims regarding mutual aid, specialty impact munitions, and racial profiling is therefore denied. CONCLUSION 3 4 For the reasons stated above, Defendants’ motion to dismiss and strike the class allegations 5 is DENIED. (Dkt. No. 67.) The Court also finds that there is good cause to grant Plaintiffs leave 6 to file the previously submitted Fourth Amended Complaint. (Dkt. No. 70.) Defendants shall file 7 their answer to the Fourth Amended Complaint within 14 days. 8 9 10 The parties shall appear for a Case Management Conference on November 17, 2016 at 1:30 p.m. in Courtroom F, 450 Golden Gate Ave., San Francisco, California. An updated Joint Case Management Conference statement is due November 10, 2016. United States District Court Northern District of California 11 12 13 IT IS SO ORDERED. Dated: August 9, 2016 14 15 JACQUELINE SCOTT CORLEY United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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