Marlowe v. City and County of San Francisco et al

Filing 39

ORDER GRANTING MOTION TO DISMISS; AFFORDING PLAINTIFF LEAVE TO AMEND; CONTINUING CASE MANAGEMENT CONFERENCE. The First Amended Complaint is dismissed. Marlowe is afforded leave to file, no later than October 21, 2016, a Second Amended Complai nt. The Case Management Conference is continued from October 28, 2016, to January 20, 2017, at 10:30 a.m.; a Joint Case Management Statement shall be filed no later than January 13, 2017. Signed by Judge Maxine M. Chesney on September 27, 2016. (mmclc1, COURT STAFF) (Filed on 9/27/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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HEATHER MARLOWE,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-00076-MMC

v.
CITY AND COUNTY OF SAN
FRANCISCO, et al.,
Defendants.

ORDER GRANTING MOTION TO
DISMISS; AFFORDING PLAINTIFF
LEAVE TO AMEND; CONTINUING
CASE MANAGEMENT CONFERENCE
Re: Dkt. No. 34

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Before the Court is the "Motion to Dismiss Plaintiff's First Amended Complaint,"

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filed August 18, 2016, by defendants City and County of San Francisco ("the City"), Joe

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Cordes ("Cordes"), Suzy Loftus ("Loftus"), Greg Suhr ("Suhr") and Mikail Ali ("Ali").

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Plaintiff Heather Marlowe ("Marlowe") has filed opposition, to which defendants have

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replied. Having read and considered the papers filed in support and in opposition to the

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motion, the Court deems the matter appropriate for determination on the parties'

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respective written submissions, VACATES the hearing scheduled for September 30,

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2016, and rules as follows:

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1. To the extent the motion seeks dismissal of the First and Third Causes of

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Action, by which Marlowe alleges, respectively, defendants deprived her of due process

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in violation of 42 U.S.C. § 1983 and defendants violated Article 1, § 7 of the California

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Constitution, the motion is hereby GRANTED; Marlowe has conceded those claims are

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subject to dismissal. (See Pl.'s Opp. at 1:27-28.)

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2. To the extent the motion seeks dismissal of the Second Cause of Action, by

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which Marlowe alleges defendants deprived her of equal protection in violation of § 1983,

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the motion is hereby GRANTED for the following reasons:

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a. Although Marlowe alleges "[d]efendants have treated sexual assault reports

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from women with less priority than other crimes not involving women reporting sexual

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assaults" (see First Amended Complaint ("FAC") ¶ 82), Marlowe fails to allege any facts

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to support such conclusory allegation, or to otherwise support a determination that

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similarly situated persons were treated more favorably than Marlowe. See Navarro v.

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Black, 72 F.3d 712, 715-17 (9th Cir. 1995) (finding equal protection claim cognizable

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based on theory plaintiffs' decedent had been injured by sheriff's department's policy "not

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to classify domestic violence 911 calls" as "emergency procedure calls," while classifying

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other types of 911 calls as emergencies; holding plaintiffs could establish violation of
equal protection if they proved "domestic violence/non-domestic violence classification"

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United States District Court
Northern District of California

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was not "rational"); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (holding

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complaint subject to dismissal where it lacks "sufficient factual matter" to support its "legal

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conclusions"; further holding "the tenet that a court must accept as true all of the

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allegations contained in a complaint is inapplicable to legal conclusions").

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b. Further, as to Cordes, given that Marlowe filed her initial complaint on January

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7, 2016, and the claim against Cordes is based on conduct Marlowe alleges occurred in

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2010 and was known to her at that time (see FAC ¶¶ 19-27), the claim is barred by the

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applicable two-year statute of limitations. See Lukovsky v. City and County of San

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Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008) (holding § 1983 claim accrues "when the

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plaintiff knows or has reason to know of the actual injury"; rejecting argument that § 1983

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claim does not accrue until plaintiff "know[s] of the legal injury, i.e., that there was an

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allegedly discriminatory motive underlying the [challenged conduct]"); Canatella v. Van

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De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007) (holding California's two-year statute of

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limitations for personal injury actions applies to § 1983 claims).

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c. Similarly, as to Loftus, Suhr and Ali, given that the claim against them is based

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on said defendants' having allegedly "creat[ed] and perpetuat[ed] [a] policy of failing to

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promptly and equitable investigate rape cases including insuring the timely testing of rape

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kits" (see FAC ¶ 61), and, as to the City, given that the claim against said defendant is
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based on the alleged existence of a municipal policy of "failing to diligently investigate

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sexual assault allegations" (see FAC ¶ 56), the claim is barred by the applicable two-year

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statute of limitations; Marlowe alleges she knew, by October 20, 2012, that her kit had

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been tested no earlier than that month (see FAC ¶¶ 37-38), i.e., she was aware in

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October 2012 of the length of the delay she challenges herein as unconstitutional in

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nature. See Lukovsky, 535 F.3d at 1051.
CONCLUSION

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For the reasons stated above, the motion to dismiss is hereby GRANTED, and the
FAC is hereby DISMISSED. Marlowe is afforded leave to file, no later than October 21,
2016, a Second Amended Complaint ("SAC") for purposes of amending her equal

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United States District Court
Northern District of California

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protection claim, specifically, to allege facts, if she can do so, to support a claim that

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defendants deprived her of equal protection, and to allege facts, if she can do so, to

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support a finding that an exception to the statute of limitations exists. Marlowe may not,

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however, add new claims or new defendants without first obtaining leave of court. See

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Fed. R. Civ. P. 15(a)(2).

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In light of the above, the Case Management Conference is hereby CONTINUED

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from October 28, 2016, to January 20, 2017, at 10:30 a.m. A Joint Case Management

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Statement shall be filed no later than January 13, 2017.

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IT IS SO ORDERED.

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Dated: September 27, 2016
MAXINE M. CHESNEY
United States District Judge

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