Manuel-Ferrell v. Oakland Police Department

Filing 15

ORDER by Judge Claudia Wilken GRANTING 14 MOTION TO DISMISS WITH LEAVE TO AMEND. (ndr, COURT STAFF) (Filed on 12/22/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MARGUERITE MANUEL-FERRELL,

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Plaintiff,

ORDER GRANTING
MOTION TO DISMISS
WITH LEAVE TO
AMEND

v.
OAKLAND POLICE DEPARTMENT,

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No. C 11-5041 CW

Defendant.
________________________________/

United States District Court
For the Northern District of California

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INTRODUCTION
Plaintiff brings a second amended complaint (2AC)1 against

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the Oakland Police Department (Defendant) based on alleged

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mistreatment during an arrest.

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1) civil battery in violation of California Civil Code § 1708;

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2) sexual battery in violation of California Civil Code § 1708.5;

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3) negligent retention and supervision of employees; and

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4) deprivation of her Fourth Amendment right to be free of

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unreasonable searches and seizures pursuant to 42 U.S.C. § 1983.

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She makes the following claims:

On October 20, 2011, Defendant filed a motion to dismiss the

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complaint because it fails to state a claim.

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that 1) Plaintiff has failed to show that her injuries were caused

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by an official policy of Defendant, 2) Plaintiff is barred from

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raising a due process claim in relation to a search and seizure

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and 3) Plaintiff's state law claims fail to state a statutory

Defendant asserted

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Although styled as a "Second Amended Complaint", this is
the first complaint brought in this Court.

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basis for recovery against Defendant.

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Plaintiff filed an opposition and, on November 9, 2011, Defendant

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filed a reply.

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Defendant renoticed the motion to dismiss for a hearing on January

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19, 2012.

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Court takes it under submission on the papers.

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all the papers filed by the parties, the Court grants the motion

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to dismiss with leave to amend.

On November 3, 2011,

Because this case was reassigned to a new judge,

However, the motion is now fully briefed and ripe.

The

Having considered

BACKGROUND

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United States District Court
For the Northern District of California

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Plaintiff Marguerite Manuel-Ferrell alleges that on September

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18, 2006 while she waited at a bus stop in Oakland California, a

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man waved her over to his car.

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driver's invitation.

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protested that she was not a prostitute.

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the man later because she believed that was the only way he would

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let her leave, and got out of the car.

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She got into the car at the

He began to talk to her about sex, while she
Plaintiff agreed to see

After she exited the car a marked Oakland Police Department

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car arrived.

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told her that she was being arrested on suspicion of prostitution.

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Plaintiff alleges that Officer Veguerra slammed her against a

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fence and the police car, then grabbed and groped her genitals.

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According to the complaint Officer Veguerra roughly shoved her

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baton against Plaintiff's vaginal area and between her buttocks

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and also touched her breast and buttocks.

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alleges that Officer Chew touched her breast with the back of his

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hand.

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distress and pain and suffering.

An officer got out, put Plaintiff in handcuffs and

Additionally Plaintiff

As a result of the incident, Plaintiff claims emotional

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LEGAL STANDARD
A complaint must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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United States District Court
For the Northern District of California

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

Fed. R.

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)

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When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 246-47 (9th Cir. 1990).

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amendment would be futile, the court examines whether the

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complaint could be amended to cure the defect requiring dismissal

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"without contradicting any of the allegations of [the] original

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complaint."

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Cir. 1990).

In determining whether

Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

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DISCUSSION
I.

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Claims Under 42 U.S.C. § 1983
Plaintiff alleges that her Fourth Amendment right to be free

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of unreasonable search and seizure was violated by Defendant and

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that she has suffered, and continues to suffer, damages as a

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result.

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U.S.C. § 1983 because Plaintiff's claims arise from a single

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incident and she pleads no facts that support the allegation that

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the assault against her was part of an official policy.

Defendant argues that it cannot be held liable under 42

United States District Court
For the Northern District of California

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A local governmental entity is liable under section 1983 when

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actions pursuant to official municipal policy of some nature cause

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a constitutional tort.

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Cir. 1992); see also City of Canton v. Harris, 489 U.S. 378, 389

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(1989).

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it has a policy of inaction and such inaction amounts to a failure

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to protect constitutional rights.

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388.

Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th

Furthermore, a local governmental body may be liable if

City of Canton, 489 U.S. at

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Plaintiff claims that Defendant "failed to monitor the

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conduct of Officer Veguerra after it had knowledge of her violent

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propensities as early as 2008."

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other incident involving Officer Veguerra and general allegations

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that Defendant was negligent in training or supervising her.

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However, the policy of inaction must be more than mere negligence;

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it must be a conscious or deliberate choice among various

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alternatives.

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She also makes reference to one

Mortimer v. Baca, 594 F.3d 714 (9th Cir. 2010).

Moreover, in order to impose liability based on a policy of

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deliberate inaction, the Ninth Circuit has stated four conditions

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that a plaintiff must satisfy: “1) [the plaintiff] possessed a
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constitutional right of which he was deprived; 2) the municipality

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had a policy; 3) this policy ‘amounts to deliberate indifference’

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to the plaintiff's constitutional right; and 4) the policy is the

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'moving force behind the constitutional violation.'”

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F.2d at 1474, (quoting City of Canton, 489 U.S. at 389–91.)

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Liability for an improper custom may not be predicated on isolated

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or sporadic incidents; it must be founded upon practices of

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sufficient duration, frequency and consistency that the conduct

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has become a traditional method of carrying out policy.

United States District Court
For the Northern District of California

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Oviatt, 954

Trevino

v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
Plaintiff fails to plead any facts to support the existence

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of a custom or widespread policy of inaction in relation to

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abusive behavior during police searches.

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alleges that the assault on Plaintiff was stopped by another

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officer on the scene, indicating that the practice was not

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necessarily “persistent and widespread.”

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Serv. of N.Y., 436 U.S. 658, 691 (1978); see also, Meehan v. Los

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Angeles County, 856 F.2d 102 (9th Cir. 1988) (two incidents not

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sufficient to establish custom); Davis v. Ellensburg, 869 F.2d

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1230 (9th Cir. 1989) (manner of one arrest insufficient to

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establish policy).

In fact, the complaint

Monell v. Dep't of Soc.

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It appears from the moving papers that Plaintiff believes

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that she has sued individual officers, and thus is not required to

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allege that there is a "policy and practice" resulting in a

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constitutional violation.

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this suit is the Oakland Police Department.

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to dismiss is granted.

However, the only named Defendant in

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Therefore the motion

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II.

Due Process Claims

In the fourth cause of action Plaintiff makes fleeting

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reference to a violation of her right to due process.

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asserts that because the claim relates to an allegedly

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unreasonable search and seizure, it can only be brought under the

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Fourth Amendment.

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Defendant

All claims that law enforcement officers have used excessive
force—deadly or not—in the course of an arrest, investigatory

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stop, or other “seizure” of a free citizen should be analyzed

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United States District Court
For the Northern District of California

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under the Fourth Amendment and its “reasonableness” standard,

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rather than under a “substantive due process” approach.

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Connor, 490 U.S. 386, 395 (1989).

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process in either her complaint or opposition.

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extent that Plaintiff intended to allege a due process claim in

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addition to her claim under the Fourth Amendment, she is barred

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from doing so.

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Graham v.

Plaintiff does not argue due
However, to the

III. State Tort Claims
Plaintiff brings one charge, negligent retention and

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supervision, directly against Defendant, and two more claims which

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rely on Defendant's vicarious liability for its employee's

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actions.

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tort claims sufficiently because she fails to state the statutory

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basis on which the public entities are liable in the first, second

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and third causes of action.

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Defendant claims that Plaintiff does not plead her state

Under California law a public entity is not liable under a

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claim brought by a plaintiff unless liability is provided for by

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statute or required by the state or federal constitution.

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Gov. Code § 815; Cochran v. Herzog Engraving Co., 155 Cal. App. 3d
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Cal.

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405, 409 (1984); Lundeen Coatings Corp. v. Department of Water &

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Power, 232 Cal. App. 3d 816, 832 (1991).

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of public entities must be based on a specific statute declaring

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them to be liable, or at least creating some specific duty of care

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. . . [o]therwise, the general rule of immunity for public

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entities would be largely eroded by the routine application of

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general tort principles. . .”

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Cal. App. 3d 481, 487 (1977), see also Munoz v. City of Union

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City, 120 Cal. App. 4th 1077 (2004).

“[D]irect tort liability

Levine v. City of Los Angeles, 68

In order to state a cause of

United States District Court
For the Northern District of California

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action for government tort liability, every fact essential to the

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existence of statutory liability must be plead with particularity,

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including the existence of a statutory duty; duty cannot be

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alleged simply by stating that defendant had a duty under the law.

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Zuniga v. Housing Authority, 41 Cal. App. 4th 82, 96 (1995),

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abrogated on other grounds by Zelig v. County of Los Angeles, 27

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Cal. 4th 112 (2002).

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Plaintiff does not dispute that Defendant is a public entity

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and seems to misunderstand Defendant's argument, arguing only that

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public entities can be held vicariously liable for the tortious

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acts or omissions of their employees.

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battery under codified common law provisions, without including a

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statutory provision that would make Defendant, as a public entity,

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liable for these torts.

Plaintiff brings suit for

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In order to state a claim, Plaintiff must include both the

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statutory provisions which impose vicarious liability on public

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entity employers and those which impose direct tort liability on

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Defendant.

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portions of the Tort Claims Act in a document attached to a

Plaintiff's assertion that she cited the relevant

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previous version of this complaint is insufficient.

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only version of the complaint that has been brought in this Court

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and it is this complaint that Defendant has moved to dismiss.

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Accordingly, Plaintiff's state tort claims are dismissed.

This is the

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Plaintiff is granted leave to amend her complaint within

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fourteen days so long as she can truthfully cure the deficiencies

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noted above.

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this case will be remanded to state court.

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If the amended complaint alleges only state claims,

If Plaintiff files an amended complaint, Defendant shall

United States District Court
For the Northern District of California

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answer or file a motion to dismiss fourteen days thereafter.

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Defendant moves to dismiss, Plaintiff's opposition shall be due

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seven days after the motion is filed.

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seven days after that.

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If

Any reply shall be due

This motion will be decided on the papers.
CONCLUSION

For the foregoing reasons the motion to dismiss is GRANTED
with leave to amend.

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IT IS SO ORDERED.

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Dated: 12/22/2011

CLAUDIA WILKEN
United States District Judge

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