Daniels v. City and County of San Francisco

Filing 7

ORDER screening first amended complaint and ordering issuance of summons and service. Signed by Judge Maria-Elena James on 12/7/2017. (mejlc3, COURT STAFF) (Filed on 12/7/2017) (Additional attachment(s) added on 12/7/2017: # 1 Certificate/Proof of Service) (rmm2S, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SCOTT DANIELS,

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Case No. 17-cv-05914-MEJ

Plaintiff,
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ORDER SCREENING FIRST
AMENDED COMPLAINT AND
ORDERING ISSUANCE OF SUMMONS
AND SERVICE

v.
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CITY AND COUNTY OF SAN
FRANCISCO,

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Defendant.

United States District Court
Northern District of California

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INTRODUCTION

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On October 16, 2017, Plaintiff Scott Daniels filed a Complaint and an Application to

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Proceed In Forma Pauperis. Compl., Dkt. No. 1; Appl., Dkt. No. 3.1 The Court granted Plaintiff’s

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Application and screened the Complaint, dismissing it with leave to amend. Screening Order,

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Dkt. No. 5. Plaintiff filed the First Amended Complaint (FAC, Dkt. No. 6), which the Court

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screens anew pursuant to 28 U.S.C. § 1915(e)(2).
SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2)

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A.

Legal Standard
While the Court has granted Plaintiff’s Application to Proceed In Forma Pauperis, it must

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also review Plaintiff’s FAC to determine whether the action may be allowed to proceed. The

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Court must dismiss the FAC if it is frivolous, fails to state a claim upon which relief can be

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granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2)(B). To make this determination, courts assess whether there is a factual and legal

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basis for the asserted wrong, “however inartfully pleaded.” Franklin v. Murphy, 745 F.2d 1221,

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On October 20, 2017, Plaintiff consented to the jurisdiction of a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). Dkt. No. 4.

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1227-28 (9th Cir. 1984) (quotation omitted). Pro se pleadings are liberally construed. Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (per curiam). Moreover, the Ninth Circuit has “repeatedly held

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that a district court should grant leave to amend even if no request to amend the pleading was

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made, unless it determines that the pleading could not possibly be cured by the allegation of other

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facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Unless it is clear that no amendment

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can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to

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notice and an opportunity to amend before dismissal. Noll v. Carlson, 809 F.2d 1446, 1448 (9th

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Cir. 1987).
Federal Rule of Civil Procedure 8 requires Plaintiff to provide a “short and plain

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statement” of the claims, but “more than an unadorned, the defendant-unlawfully-harmed-me

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United States District Court
Northern District of California

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accusation” to help the Court logically connect how the defendant caused Plaintiff’s injury and

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show what claims for relief exist. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted).

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“[A] plaintiff’s obligation to provide the ‘grounds’ for . . . ‘entitlement to relief’ requires more

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than labels and conclusions . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For

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instance, in Ashcroft, the Supreme Court rejected conclusory assertions that “petitioners ‘knew of,

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condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of

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confinement ‘as a matter of policy, solely on the account of [his] religion, race, and/or national

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origin and for no legitimate penological interest.’” 556 U.S. at 680. The Court reasoned that such

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allegations were akin to the “formulaic recitation of the elements” dismissed in Twombly, and

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therefore, insufficient to meet Rule 8(a). Id. In doing so, the Court explained, “[a] claim has

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

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

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B.

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Allegations in the Complaint
Plaintiff asserts a number of claims arising from his arrest by SFPD Officers on or about

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October 15, 2015. He alleges Does 1-2 are SFPD Officers who acted under color of authority

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and/or under state law, and committed these acts pursuant to custom or policies adopted by the

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City and County of San Francisco. FAC ¶¶ 7-9, 11-12, 14, 23. Plaintiff alleges Doe 1 instructed

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him to stop on the street, but when Plaintiff began to leave after confirming he was not being
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detained, Doe 1 again instructed him to stop and detained him. Id. ¶¶ 15-16. Doe 2 was present;

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Does 1 and 2 repeatedly verbally admonished Plaintiff; taunted him; used slurs against him; and

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indicated Plaintiff did not need an attorney, should answer questions, and should submit to

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detention and questioning. Id. ¶ 18. Plaintiff was arrested for asserting his rights; he was

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handcuffed in an unlawfully tight fashion and left to sit in a hot patrol car for a significant period

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of time; he also was slammed to the ground, punched, kicked, and placed in debilitating control

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holds and unnecessary weight was placed on his back and head. Id. ¶¶ 19-20, 45.
Plaintiff asserts three claims under 42 U.S.C. § 1983: (1) unlawful search and seizure in

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violation of his rights under the Fourth and Fourteenth Amendments of the United States

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Constitution; (2) excessive force in violation of his rights under the Fourth and Fourteenth

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United States District Court
Northern District of California

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Amendments; and (3) violations of his right to petition the government for a redress of grievances

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under the First Amendment. Plaintiff also asserts a number of claims under California state law:

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violation of the Bane Act, Cal. Civ. Code § 52.1; assault; battery; and negligence. Plaintiff names

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the City and County of San Francisco and Does 1 and 2 as defendants. The caption of the FAC

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also lists a claim for negligent infliction of emotional distress, but Plaintiff does not actually assert

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such a claim in the FAC.

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C.

Analysis and Screening

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1.

Federal Claims

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Under Section 1983, “every person who, under color of any statute . . . custom, or usage of

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any State . . . subjects, or causes to be subjected, any . . . person within the jurisdiction of [the

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United States] to the deprivation of any rights, privileges or immunities secured by the

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Constitution and laws, shall be liable to the party injured in an action at law.” Flores v. Cty. of

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L.A., 758 F.3d 1154, 1158 (9th Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

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(1978), and other cases). To plead a Section 1983 claim against an individual, Plaintiff must

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allege (1) the conduct that harmed him was committed under color of state law (i.e., state action),

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and (2) the conduct deprived him of a constitutional right. See Ketchum v. Alameda Cty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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In dismissing the original Complaint, which asserted claims against officer defendants
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Does 1-10 as well as against two named individuals, the Court explained Plaintiff must allege how

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each Defendant personally participated in the deprivation of his rights and how each acted under

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color of state law. See First Screening Order at 4, Dkt. No. 5. In the FAC, Plaintiff alleges how

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Does 1 and 2 (both police officers) participated in the deprivation of his rights. See FAC ¶¶ 7-20,

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33, 45. The FAC states facially plausible Section 1983 claims against Does 1 and 2 for

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deprivation of Plaintiff’s rights under the First, Fourth, and Fourteenth Amendments.
The Court previously explained that “[n]either state officials nor municipalities are

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vicariously liable for the deprivation of constitutional rights by employees.” First Screening Order

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at 4 (quoting Flores, 758 F.3d at 1158). Therefore, to plead a Section 1983 claim against a

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municipality for a violation of constitutional rights resulting from governmental inaction or

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United States District Court
Northern District of California

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omission, Plaintiff must allege (1) he possessed a constitutional right of which he was deprived;

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(2) the municipality had a policy; (3) this policy amounts to deliberate indifference to Plaintiff’s

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constitutional rights; and (4) the policy is the moving force behind the constitutional violation.

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See Plumeau v. Sch. Dist. #40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). A plaintiff may

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establish Monell liability by “prov[ing] that an officer committed the alleged constitutional

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violation pursuant to a formal governmental policy or a longstanding practice or custom which

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constitutes the standard operating procedure of the local governmental entity.” Wilson v. Fla.

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Dep’t of Revenue, 2015 WL 136557, at *6 (N.D. Cal. Jan. 8, 2015) (internal quotation marks

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omitted). “In the alternative, Monell liability may be established where the ‘individual who

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committed the constitutional tort was an official with final policy-making authority’ or ‘an official

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with final policy-making authority ratified a subordinate’s unconstitutional decision or action and

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the basis for it.’” Id. (internal citations omitted). But municipalities are not liable under Section

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1983 if they do not have the power to remedy the alleged violation. See Estate of Brooks v. United

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States, 197 F.3d 1245, 1248-49 (9th Cir. 1999) (upholding dismissal of § 1983 excessive detention

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claim against county because, under state statute, county did not have power either to release

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federal detainee or bring him before federal judge).

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Plaintiff alleges the conduct he complains of was taken due to a custom or policy of the
City and County of San Francisco (FAC ¶¶ 2, 14), and more specifically alleges “policies and
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customs to allow officers to detain persons such as plaintiff without probable cause or reasonable

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suspicion for failing to give ‘proper deference’ to police officers” (id. ¶ 23). “In order to

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withstand a motion to dismiss for failure to state a claim, a Monell claim must consist of more than

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mere ‘formulaic recitations of the existence of unlawful policies, conducts or habits.’” Bedford v.

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City of Hayward, 2012 WL 4901434, at *12 (N.D. Cal. Oct. 15, 2012) (quoting Warner v. Cty. of

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San Diego, 2011 WL 662993, at *4 (S.D. Cal. Feb. 14, 2011)). Plaintiff sufficiently alleges for

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purposes of screening that a specific City and County policy was the moving force behind the

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violation of Plaintiff’s rights to be free from unreasonable search and seizure under the Fourth and

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Fourteenth Amendment, and to be free from retaliation for exercising free speech under the First
Amendment: the City’s policy and custom of allowing its officers to detain persons such as

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United States District Court
Northern District of California

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Plaintiff under the circumstances alleged in the FAC. Plaintiff, however, does not identify any

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policy or custom pertaining to the violation of his right to be free from excessive force under the

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Fourth and Fourteenth Amendments.

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For purposes of screening, the FAC states federal claims upon which relief can be granted
as to Does 1 and 2, and the City and County of San Francisco.

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2.

State Law Claims

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The Bane Act prohibits “a person or persons, whether or not acting under color of law,

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[from] interfere[ing] by threats, intimidation, or coercion, or [from] attempt[ing] to interfere by

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threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals

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of rights secured by the Constitution or laws of the United States, or of the rights secured by the

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Constitution or laws of this state. . . .” Cal. Civ. Code § 52.1. Because Plaintiff plausibly alleges

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violations of his rights under the United States Constitution (see supra), and that Does 1 and 2

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used threats, intimidation, and coercion to interfere with those rights (FAC ¶¶ 17-18, 45), the FAC

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plausibly alleges the elements of a Bane Act claim. The City and County of San Francisco may be

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held vicariously liable for its police officers’ violations of the Bane Act. See D.V. v. City of

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Sunnyvale, 65 F. Supp. 3d 782, 787 (N.D. Cal. 2014) (citing cases holding cities liable under

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respondeat superior for Bane Act violations of police officers). The allegations of the FAC are

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sufficient to show for screening purposes the City and County of San Francisco is a proper
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defendant to the Bane Act claim here.

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To state a battery claim under California law, Plaintiff must allege: (1) Defendants

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intentionally did an act that resulted in harmful or offensive contact with his person; (2) he did not

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consent to the contact; and (3) the contact caused him injury, damage, loss or harm. See Tekle v.

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United States, 511 F.3d 839, 855 (9th Cir. 2007). Plaintiff sufficiently alleges these elements as to

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Does 1 and 2 for screening purposes. See FAC ¶¶ 45-47. California police officers who use

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unreasonable force to make an arrest are not immune from liability. See Robinson v. Solano Cty.,

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278 F.3d 1007, 1016 (9th Cir. 2002) (police officers not immune from suit under California law

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for using excessive force in arresting a suspect). Although the battery claim alleges “Does 1-10”
battered Plaintiff, the FAC alleges no facts regarding the conduct or position of any individual

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United States District Court
Northern District of California

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defendant other than Does 1 and 2. The FAC accordingly does not state a battery claim against

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any individual defendant other than Does 1 and 2.

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To state an assault claim under California law, Plaintiff must allege: “(1) that Defendants

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intended to cause harmful or offensive contact, or the imminent apprehension of such contact, and

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(2) that Plaintiff was put in imminent apprehension of such contact.” Brooks v. United States, 29

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F. Supp. 2d 613, 617 (N.D. Cal. 1998). Plaintiff alleges that Defendants 1 and 2 intentionally

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caused harmful contact (FAC ¶¶ 41, 45), and that Plaintiff was placed in fear of an immediate

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harmful offensive touching (id. ¶ 42). For purposes of screening pursuant to Section 1915(e)(2),

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the FAC states an assault claim against Does 1 and 2.

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To state a negligence claim under California law, Plaintiff must allege (1) a legal duty to

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use due care; (2) a breach of that duty; and (3) an injury that was proximately caused by the

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breach. See Ladd v. Cty. of San Mateo, 12 Cal. 4th 913, 917 (1996). Police officers have a duty

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not to use excessive force (Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1101 (2004)),

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and have a duty to intercede when their fellow officers violate the constitutional rights of a citizen

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(Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000)). The FAC alleges Does 1 and 2

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breached that duty by using excessive force. Plaintiff alleges he was harmed by that conduct. The

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FAC thus plausibly states a negligence claim against Does 1 and 2.

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The City and County of San Francisco may be vicariously liable for Plaintiff’s common
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law claims based on excessive force. See Robinson, 278 F.3d at 1016 (governmental entity

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employing police officers can be held vicariously liable when officers use excessive force in the

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course and scope of employment). The FAC also alleges a claim was filed pursuant to the

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California Government Tort Claims Act. FAC ¶ 3. Thus, Plaintiff plausibly states claims against

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the City and County of San Francisco based on its vicarious liability for assault, battery, and

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negligence by Does 1 and 2.
CONCLUSION

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The Court finds that, liberally construed, the FAC plausibly alleges claims that are not
frivolous and that do not seek relief against immune defendants:
(1)

Section 1983 claims against Does 1 and 2 for violations of Plaintiff’s Constitutional

United States District Court
Northern District of California

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rights to free speech, to be free from unlawful search and seizure, and to be free from use of

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excessive force against Does 1 and 2.

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(2)

Monell claims against the City and County of San Francisco for violations of

Plaintiff’s right to free speech and to be free from unlawful search and seizure.

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(3)

A Bane Act claim against Does 1 and 2 and the City and County of San Francisco.

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(4)

Assault, battery, and negligence claims against Does 1 and 2 and the City and

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County of San Francisco.
The Clerk of Court shall issue the summons, and the U.S. Marshal for the Northern District

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of California shall serve, without prepayment of fees, a copy of the FAC, any amendments or

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attachments thereto, Plaintiff’s affidavit, and this order upon Defendants.

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In addition, the Clerk of Court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint

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and all attachments thereto, a magistrate judge consent form, and a copy of this order to the named

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Defendants. If this case involves federal defendants, the Clerk shall also mail a courtesy copy of

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the complaint and a copy of this order to the U.S. Attorney’s Office in San Francisco.

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Defendants are cautioned that Federal Rule of Civil Procedure 4 requires them to cooperate

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in saving unnecessary costs of service of the summons and complaint. Pursuant to Rule 4, if

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Defendants, after being notified of this action and asked by the Court, on behalf of Plaintiff, to
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waive service of the summons, fails to do so, they will be required to bear the cost of such service

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unless good cause be shown for their failure to sign and return the waiver form. If service is

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waived, this action will proceed as if Defendants had been served on the date the waiver is filed,

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and Defendants will not be required to serve and file an answer before sixty (60) days from the

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date on which the request for waiver was sent. Defendants are asked to read the statement set

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forth at the bottom of the waiver form that more completely describes the duties of the parties with

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regard to waiver of service of the summons. If service is waived after the date provided in the

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Notice but before Defendants are personally served, the Answer shall be due sixty (60) days from

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the date on which the request for waiver was sent or twenty (20) days from the date the waiver

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United States District Court
Northern District of California

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form is filed, whichever is later.
IT IS SO ORDERED.

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Dated: December 7, 2017
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MARIA-ELENA JAMES
United States Magistrate Judge

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