Key v. San Francisco Police Officer 0536-16

Filing 37

ORDER by Judge Laurel Beeler granting 31 Motion to Dismiss. The court dismisses the Fourth Amendment claim with prejudice and the Fourteenth Amendment claim with leave to amend. The plaintiff must file any amended complaint by August 14, 2017. See the attached order a fuller discussion. (lblc3S, COURT STAFF) (Filed on 7/24/2017)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 12 OK SOON KEY, Case No. 17-cv-00854-LB Plaintiff, 13 ORDER DISMISSING CASE 14 v. 15 BRINN LUJAN, Re: ECF No. 31 Defendant. 16 17 18 INTRODUCTION 19 The plaintiff Ok Soon Key sued an officer of the San Francisco Police Department; liberally 20 construed, her complaint alleges that the officer used excessive force against her daughter in 21 violation of the Fourth Amendment and her Fourteenth Amendment due-process right to associate 22 with her daughter.1 The defendant moves to dismiss because Ms. Key cannot assert her daughter‟s 23 Fourth Amendment rights and does not plausibly plead a Fourteenth Amendment claim.2 The 24 court can decide the motion under Civil Local Rule 7-1(b) and grants the motion to dismiss the 25 Fourth Amendment claim with prejudice and the Fourteenth Amendment claim with leave to 26 27 28 Am. Compl. – ECF No. 11. Record citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 2 Motion – ECF No. 31. ORDER – No. 17-cv-00854-LB 1 amend. 2 STATEMENT 3 The complaint has the following fact allegations about the police officer‟s use of force against 4 5 Ms. Key‟s daughter. Ms. Key and her daughter had an argument on February 24, 2015, and Ms. 6 Key called the police.3 The police grabbed the daughter and tried to handcuff her, twisting her 7 body.4 It looked like the police officer used his leg, slammed her on the ground, and smashed her 8 face on the carpet; the daughter couldn‟t move.5 He might have fallen down hard on one of his 9 legs, and it “[l]ooked like he was very mad when he slammed her on the ground and smashed her face on the carpet. She couldn‟t move.”6 The daughter didn‟t do anything wrong, there was no 11 United States District Court Northern District of California 10 reason to hit her or smash her face on the carpet and handcuff her; it didn‟t match the situation at 12 hand.7 Her face was scratched up.8 Her hip was broken so badly that she could not have surgery at 13 CPMC and had to have surgery at UCSF; two years later, she is still in pain and it is unnecessarily 14 hard for her to walk.9 Her body is not like it was before, her face has had a scar for two years, she 15 can barely walk, and she feels threatened, doesn‟t want to answer the phone, and is in emotional 16 distress.10 Ms. Key is in pain for her daughter.11 The complaint also says that Ms. Key went with her daughter to the hospital that day and was 17 18 present during her daughter‟s treatment.12 19 20 21 3 Id. at 5. 22 4 Id. 5 Id. 6 Id. 24 7 Id. 25 8 Id. 9 Id. at 6. 23 26 10 Id. 27 11 Id. at 7. 28 12 Id. at 11. ORDER – No. 17-cv-00854-LB 2 GOVERNING LAW 1 2 A complaint must contain a “short and plain statement of the claim showing that the pleader is 3 entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon 4 which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 5 (2007). This statement “must contain sufficient factual matter, accepted as true, to „state a claim to 6 relief that is plausible on its face.‟” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 7 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that 8 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 9 alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a „probability requirement,‟ but it asks for more than a mere possibility that a defendant has acted unlawfully.” 11 United States District Court Northern District of California 10 Id. (quoting Twombly, 550 U.S. at 556). A complaint does not need detailed factual allegations, 12 but “a plaintiff‟s obligation to provide the „grounds‟ of his „entitlement to relief‟ requires more 13 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 14 do. Factual allegations must be enough to raise a claim for relief above the speculative level . . . .” 15 Twombly, 550 U.S. at 555 (internal citations omitted). Also, “[w]here a complaint pleads facts that 16 are „merely consistent with‟ a defendant‟s liability, it „stops short of the line between possibility 17 and plausibility of „entitlement to relief.‟‟” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 18 557). 19 While a court construes pro se pleadings more “leniently,” the court cannot salvage claims that 20 are fatally deficient. See De la Vega v. Bureau of Diplomatic Sec., No. 07-CV-3619-WHA, 2007 21 WL 2900496, at *1 (N.D. Cal. Oct. 1, 2007). If a court dismisses a complaint, it should give leave 22 to amend unless the “the pleading could not possibly be cured by the allegation of other facts.” 23 Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 24 25 ANALYSIS 26 Ms. Key cannot assert a violation of her daughter‟s Fourth Amendment Rights. Alderman v. 27 United States, 394 U.S. 165, 174 (1969); Moreland v. Las Vegas Met. Police Dep’t, 159 F.3d 365, 28 369 (9th Cir. 2001). The court dismisses the claim with prejudice. ORDER – No. 17-cv-00854-LB 3 1 The next issue is whether Ms. Key states a Fourteenth Amendment claim. The Fourteenth 2 Amendment‟s substantive-due-process clause protects against the arbitrary or oppressive exercise 3 of government power. See County of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998). Parents 4 and children may assert Fourteenth Amendment substantive-due-process claims if they are 5 deprived of their liberty interest in the companionship and society of their child or parent through 6 official conduct. See Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062,1075 7 (9th Cir. 2013) (parents and children); Smith v. City of Fontana, 818 F.2d 1411, 1418–19 (9th Cir. 8 1987)13; Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (parent); Crumpton v. 9 Gates, 947 F.2d 1418, 1421–24 (9th Cir. 1991) (child); cf. Ward v. City of San Jose, 967 F.2d 280, 283–84 (9th Cir. 1992) (sibling has no constitutionally protected interest in brother‟s 11 United States District Court Northern District of California 10 companionship under section 1983). “[T]he Due Process Clause is violated by executive action 12 only when it can properly be characterized as arbitrary, or conscience shocking, in a constitutional 13 sense.” Lewis, 523 U.S. at 845–47 (quotation omitted); see Lemire, 726 F.3d at 1075. The 14 cognizable level of executive abuse of power is that which “shocks the conscience” or “violates 15 the decencies of civilized conduct.” Lewis, 523 U.S. at 846. Mere negligence or liability grounded 16 in tort does not meet the standard for a substantive-due-process decision. Id. at 848–49. The Ninth Circuit has explained: “In determining whether excessive force shocks the 17 18 conscience, the court must first ask „whether the circumstances are such that actual deliberation 19 [by the officer] is practical.‟” Wilkinson, 610 F.3d at 553 (quoting Porter v. Osborn, 546 F.3d 20 1131, 1137 (9th Cir. 2008) (quoting in turn Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 21 365, 372 (9th Cir. 1998) (internal quotation omitted)). “Where actual deliberation is practical, then 22 an officer‟s „deliberate indifference‟ may suffice to shock the conscience. On the other hand, 23 where a law enforcement officer makes a snap judgment because of an escalating situation, his 24 conduct may be found to shock the conscience only if he acts with a purpose to harm unrelated to 25 legitimate law enforcement objectives.” Hayes v. County of San Diego, 736 F.3d 1223, 1230 (9th 26 27 13 28 Smith was overruled on other grounds by Hodgers–Durgin v.De la Vina, 199 F.3d 1037, 1040 n. 1(9th Cir. 1999). ORDER – No. 17-cv-00854-LB 4 1 Cir. 2013) (citing Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)). 2 Here, Ms. Key has not plausibly pleaded conduct that shocks the conscience or that the 3 officer‟s conduct interfered with her familial relationship with her daughter. The court does not 4 think that she can amend her complaint to state a claim. But given the Ninth Circuit‟s standards 5 for liberally construing pro se complaints and dismissals with leave to amend, the court dismisses 6 the claim with leave to amend. 7 CONCLUSION 8 9 The court dismisses the Fourth Amendment claim with prejudice and the Fourteenth Amendment claim with leave to amend. The plaintiff must file any amended complaint by August 11 United States District Court Northern District of California 10 14, 2017. This disposes of ECF No. 31. 12 IT IS SO ORDERED. 13 Dated: July 24, 2017 ______________________________________ LAUREL BEELER United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER – No. 17-cv-00854-LB 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?