Robles vs. Aguilar

Filing 17

ORDER by Judge Maria-Elena James granting in part and denying in part 8 Motion to Dismiss. Amended Pleadings due by 3/30/2017. (mejlc3S, COURT STAFF) (Filed on 3/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JUSTINE VALENTIN ROBLES,

Case No. 16-cv-07038-MEJ

Plaintiff,
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ORDER RE: MOTION TO DISMISS

v.

Re: Dkt. No. 8

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VICTOR AGUILAR, et al.,
Defendants.

United States District Court
Northern District of California

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INTRODUCTION
Pending before the Court is Defendants Victor Aguilar, City of Sebastopol, and Jeffrey

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Weaver (together, “Defendants”)’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure

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(“Rule”) 12(b)(6). Plaintiff Justine Robles filed an Opposition (Dkt. No. 15) and Defendants filed

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a Reply (Dkt. No. 16). The Court finds this matter suitable for disposition without oral argument

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and VACATES the March 30, 2017 hearing. See Fed. R. Civ. P. 78(b); Civ. L.R. 7-1(b). Having

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considered the parties’ positions, the relevant legal authority, and the record in this case, the Court

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GRANTS IN PART Defendant’s Motion for the following reasons.

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BACKGROUND
On November 20, 2015, Defendant Aguilar stopped Plaintiff for an alleged traffic violation

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and performed field sobriety tests. Compl. ¶ 13, Dkt. No. 1. Following the sobriety tests,

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Defendant Aguilar took Plaintiff into custody and transported her to the Sebastopol Police

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Department. Id. ¶ 13. Plaintiff declined to submit to a further breath or blood test at that point.

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Id. ¶ 14. After Defendant Aguilar refused to answer Plaintiff’s questions regarding the earlier

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tests, she became frustrated, and stood up from the stool upon which she had been seated; she was

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handcuffed, with her hands secured behind her back. Id. Defendant Aguilar physically grabbed

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Plaintiff by the arm, yelled at her, and attempted to force her back onto the stool. Id. at ¶ 15.

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When Plaintiff did not sit back onto the stool, Defendant Aguilar kicked Plaintiff’s legs out from

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under her; Plaintiff could not break her fall because her hands were cuffed behind her back, so she

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fell onto the concrete floor. Id. Defendant Aguilar forced Plaintiff to the ground and thrust her

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head into the concrete floor and adjacent wall; he climbed on top of her, grabbed her by the neck,

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and rolled her onto her back. Id. ¶ 16. He continued to grab her by the throat, rolled her onto her

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side, and again slammed her head, this time into a metal door jamb. Id. Although Plaintiff was

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visibly injured and still handcuffed, Defendant Aguilar continued to hold her down on the ground

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for fifteen minutes before allowing her to be treated. Id. Plaintiff alleges “[t]he entire incident is

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captured on video.” Id. ¶ 17.

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Based on these allegations, Plaintiff claims Defendant Aguilar used excessive force while

United States District Court
Northern District of California

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Plaintiff was held at the Sebastopol Police Department. She asserts a 42 U.S.C. § 1983 claim

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against Aguilar based on violations of the Fourth, Fifth, and Fourteenth Amendments. She also

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asserts a Monell claim against Defendants Weaver and the City. Finally, she asserts state law

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claims for negligence, negligent hiring and supervision, violation of the Bane Act, assault and

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battery, and intentional infliction of emotional distress (“IIED”) against all Defendants.

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Defendants move to dismiss all claims, primarily based on a videotape of the incident.

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LEGAL STANDARD

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Rule 8(a) requires that a complaint contain a “short and plain statement of the claim

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showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must therefore

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provide a defendant with “fair notice” of the claims against it and the grounds for relief. Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and citation omitted).

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A court may dismiss a complaint under Rule 12(b)(6) when it does not contain enough

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facts to state a claim to relief that is plausible on its face. Id. at 570. “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

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more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550

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U.S. at 557). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
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detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. Factual allegations must be enough to raise a right to relief above the

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speculative level.” Twombly, 550 U.S. at 555 (internal citations and parentheticals omitted).

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In considering a motion to dismiss, a court must accept all of the plaintiff’s allegations as

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true and construe them in the light most favorable to the plaintiff. Id. at 550; Erickson v. Pardus,

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551 U.S. 89, 93-94 (2007); Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007). In

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addition, courts may consider documents attached to the complaint. Parks Sch. of Bus., Inc. v.

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Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation omitted).
If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no

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United States District Court
Northern District of California

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request to amend the pleading was made, unless it determines that the pleading could not possibly

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be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en

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banc) (internal quotations and citations omitted). However, the Court may deny leave to amend

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for a number of reasons, including “undue delay, bad faith or dilatory motive on the part of the

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movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice

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to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.”

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing Foman v.

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Davis, 371 U.S. 178, 182 (1962)).
DISCUSSION

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A.

The Court Will Not Consider the Video on a Motion to Dismiss

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Defendants ask the Court to consider a videotape of the incident, which they contend will

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prove Plaintiff cannot state a claim. Defendants essentially offer the videotape to attack the truth

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of Plaintiff’s allegations. They contend the Court may consider the video because Plaintiff

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referenced it in her Complaint by alleging “[t]he entire incident is captured on video.” Mot. at 2;

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see Compl. ¶ 17. Although Plaintiff does reference the existence of the video, the Court does not

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find this allegation incorporates the footage by reference or that the footage is central to her

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Complaint; nor does Plaintiff rely upon the footage to state her claims.

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Moreover, Defendants do not identify a single case where a court has agreed to review a
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videotape when deciding a motion to dismiss an excessive force claim. See id. at 2-4. The Court

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will not consider the video recording on this Motion to Dismiss, especially where Plaintiff has

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neither attached the video to the Complaint nor relied upon it to state a claim. Cf. Gersbacher v.

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City of N.Y., 134 F. Supp. 3d 711, 718-20 (S.D.N.Y. 2015) (“[W]here courts have considered

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video evidence in conjunction with 12(b)(6) motions, the video has either been offered by the

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plaintiff as part of its pleadings or the plaintiff has incorporated the video by reference after the

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defendant introduced the video.”); Crutchfield v. Nash, 2015 WL 1268162, at *1 n.2 (W.D. Va.

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Mar. 19, 2015) (considering dash-cam video on motion to dismiss where plaintiff attached video

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to complaint, and defendant authenticated it); Garrett v. Crawford, 2016 WL 843391, at *9 (W.D.
Tex. Mar. 1, 2016) (examining dash cam footage of incident “would be inappropriate . . . when

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United States District Court
Northern District of California

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considering a motion to dismiss” excessive force claim).
The footage may present a compelling defense at a later stage in the proceedings, but it

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cannot be considered to evaluate the sufficiency of Plaintiff’s claims on a motion to dismiss.

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B.

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Defendant Aguilar
To state a Section 1983 claim, Plaintiff must allege that a person acting under color of state

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law violated a right secured by the Constitution or law of the United States. See West v. Adkins,

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487 U.S. 42, 48 (1988). Taking as true the well-pleaded allegations of the Complaint, Plaintiff

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states an excessive force claim against Defendant Aguilar. She alleges he used excessive force

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while she was detained at the police station by knocking her to the hard ground while she was

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handcuffed and posing no threat, slamming her head against the wall and floor, and keeping her on

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the floor for fifteen minutes despite her obvious injuries. She contends these actions violated her

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rights under the Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution. Finally, she

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alleges Defendant Aguilar was a police officer acting under color of state law. These allegations

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are sufficient to state an excessive force claim under Section 1983.

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Defendants argue qualified immunity bars Plaintiff’s claim. To prevail on his qualified

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immunity argument, Defendant Aguilar must establish it would have been “objectively reasonable

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[for him] to believe that the amount of force employed was required by the situation he

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confronted. . . .” Knapps v. City of Oakland, 647 F. Supp. 2d 1129, 1163 (N.D. Cal. 2009)
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(quoting Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003)). Assuming the truth of the

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well-pleaded allegations of the Complaint, Plaintiff was handcuffed following a traffic stop during

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which she presumably failed a field sobriety test, and her only infraction at the police station was

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to get off the stool upon which she was seated. Again, assuming the truth of these allegations, no

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reasonable officer could believe that knocking Plaintiff to the ground and slamming her head

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repeatedly while she was handcuffed was necessary.
Plaintiff asserts four state law claims against Aguilar: negligence, Bane Act, assault and

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battery, and IIED. These claims are premised on Aguilar’s excessive and intentional use of force.

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For the same reasons the Court found Plaintiff sufficiently stated a Section 1983 claim against

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Aguilar, the Court finds Plaintiff sufficiently states common law claims against him.
The Bane Act creates a private right of action if a defendant utilizes improper means (e.g.,

United States District Court
Northern District of California

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threats, intimidation, or coercion) to interfere with an individual’s civil rights. See Cal. Gov’t

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Code § 52.1. Defendants argue the claim is insufficiently pleaded because it does not allege any

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conduct independent from the Constitutional violation. See Mot. at 15 (citing Shoyoye v. Cty. of

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Los Angeles, 203 Cal. App. 4th 947, 961 (2012)). Plaintiff has alleged facts sufficient to state a

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Bane Act claim against Aguilar. At the pleading stage, “Shoyoye applies only when the conduct is

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unintentional.” M.H. v. Cty. of Alameda, 90 F. Supp. 3d 889, 898 (N.D. Cal. 2013). Plaintiff

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alleges Aguilar’s conduct was intentional, and Shoyoye therefore does not apply.
For these reasons, the Court denies Defendant Aguilar’s Motion to Dismiss.

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C.

Sufficiency of Claims Against Defendants Weaver and City of Sebastopol

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Plaintiff does not respond to any of the specific arguments Defendants raise in their

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Motion regarding Monell liability or Plaintiff’s state law claims. See Opp’n at 10. The Court will

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analyze the merits of Defendants’ Motion despite Plaintiff’s failure to do so. In the future, the

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Court will deem a failure to substantively address an argument as an admission that the claim or

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argument lacks merit.

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Plaintiff cannot state a Monell claim against an individual defendant. See Guillory v.

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Weaver

Orange Cty., 731 F.2d 1379, 1382 (9th Cir. 1984) (“Monell does not concern liability of
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individuals acting under color of state law.”). Monell liability applies only to municipal or other

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local government units when employees of such entities are found to have committed other

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constitutional violations and “a policy, practice or custom of the entity can be shown to be a

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moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d

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892, 900 (9th Cir. 2011). As amendment of this claim against Defendant Weaver would be futile,

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the Court grants Defendants’ Motion to Dismiss the Section 1983 Monell claim against Defendant

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Weaver with prejudice. See Smith v. Cty. of Santa Cruz, 2014 WL 3615492, at *11 (N.D. Cal.

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July 22, 2014).

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Plaintiff alleges facts supporting her negligent hiring and supervision claim against Weaver
(Compl. ¶¶ 44-51), but alleges absolutely no facts stating any other state law claim against that

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United States District Court
Northern District of California

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Defendant. See Compl. The Court accordingly dismisses with leave to amend Plaintiff’s

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negligence, Bane Act, assault and battery, and IIED claims against Weaver; the Court denies the

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Motion to Dismiss Plaintiff’s negligent hiring and supervision claim against Weaver.

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City of Sebastopol

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To be entitled to the presumption of truth, a plaintiff asserting a Monell claim “may not

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simply recite the elements of a cause of action, but must [include] sufficient allegations of

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underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”

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A.E. ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2011) (quoting Starr v. Baca,

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652 F.3d 1202, 1216 (9th Cir. 2011)); see also Bagley v. Sunnyvale, 2017 WL 344998, at *16

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(N.D. Cal. Jan. 24, 2017) (analyzing pleading standard for Monell claim). Plaintiff’s formulaic

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recitation of the elements of a Monell claim against the City includes no facts “regarding the

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specific nature of [the] alleged ‘policy, custom, or practice[.]’” Id. at 637; see also Dougherty v.

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City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011) (affirming dismissal where complaint

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“lacked any factual allegations . . . demonstrating that [the] constitutional deprivation was the

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result of a custom or practice [] or that the custom or practice was the ‘moving force’ behind [the]

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constitutional deprivation”). Plaintiff’s bare bones, conclusory allegations are insufficient to

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survive a motion to dismiss. See id.; Anakin v. Contra Costa Reg’l Med. Ctr., 2016 WL 2893257,

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at *4 (N.D. Cal. May 18, 2016) (Section 1983 plaintiff must identify “specific policies or
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customs” in complaint); Roy v. Contra Costa Cty., 2016 WL 54119, at *4 (N.D. Cal. Jan. 5, 2016)

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(plaintiffs in federal courts bear burden of “identifying specific policies” to plead Monell claims).

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Defendants’ Motion to Dismiss the Section 1983 claim against the City accordingly is granted

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with leave to amend, provided Plaintiff can allege specific facts that identify a City policy, custom,

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or practice.
Plaintiff asserts five state law claims against the City: negligence, negligent hiring and

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supervision, Bane Act, assault and battery, and IIED. Under California law, “[e]xcept as provided

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by statute . . . [a] public entity is not liable for an injury, whether such injury arises out of an act or

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omission of the public entity or a public employee or any other person.” Cal. Gov’t Code § 815.

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To plead a state law claim against the City, Plaintiff “must therefore identify a statute specifically

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United States District Court
Northern District of California

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authorizing public entity liability as an exception to section 815.” Steinle v. City & Cty. of S.F.,

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2017 WL 67064, at *10 (N.D. Cal. Jan. 6, 2017). Plaintiff alleges the City is responsible for

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Aguilar and Weaver’s conduct under principles of respondeat superior and pursuant to

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Government Code section 815.2(a). See Compl. ¶¶ 41, 49, 55, 61, 67. Section 815.2(a) provides

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that “[a] public entity is liable for injury proximately caused by an act or omission of an employee

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of the public entity within the scope of his employment if the act or omission would, apart from

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this section, have given rise to a cause of action against that employee[.]” Because Plaintiff has

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identified a statute she contends authorizes public entity liability based on Aguilar’s and/or

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Weaver’s acts or omissions, and because the Court finds Plaintiff has stated claims against Aguilar

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and Weaver, the Court denies Defendants’ Motion to Dismiss her state law claims against the

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City.

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CONCLUSION
For the reasons stated above, the Court declines to consider the footage of the incident and

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denies Defendants’ Motion to Dismiss the claims against Officer Aguilar, the state law claims

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against the City of Sebastopol, and the negligent hiring and supervision claim against Chief

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Weaver. The Court otherwise grants Defendants’ Motion to Dismiss: the Monell claim against

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the City of Sebastopol is dismissed with leave to amend; the Monell claim against Weaver is

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dismissed without leave to amend; the negligence, Bane Act, assault and battery, and IIED claims
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against Weaver are dismissed with leave to amend.
Plaintiff shall file an amended Complaint no later than March 30, 2017. Defendants shall
file a responsive pleading no later than April 20, 2017.

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IT IS SO ORDERED.
Dated: March 10, 2017
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MARIA-ELENA JAMES
United States Magistrate Judge

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United States District Court
Northern District of California

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