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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 MARGUERITE MANUEL-FERRELL, 5 6 7 Plaintiff, ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND v. OAKLAND POLICE DEPARTMENT, 8 9 No. C 11-5041 CW Defendant. ________________________________/ United States District Court For the Northern District of California 10 11 12 INTRODUCTION Plaintiff brings a second amended complaint (2AC)1 against 13 the Oakland Police Department (Defendant) based on alleged 14 mistreatment during an arrest. 15 1) civil battery in violation of California Civil Code § 1708; 16 2) sexual battery in violation of California Civil Code § 1708.5; 17 3) negligent retention and supervision of employees; and 18 4) deprivation of her Fourth Amendment right to be free of 19 unreasonable searches and seizures pursuant to 42 U.S.C. § 1983. 20 She makes the following claims: On October 20, 2011, Defendant filed a motion to dismiss the 21 complaint because it fails to state a claim. 22 that 1) Plaintiff has failed to show that her injuries were caused 23 by an official policy of Defendant, 2) Plaintiff is barred from 24 raising a due process claim in relation to a search and seizure 25 and 3) Plaintiff's state law claims fail to state a statutory Defendant asserted 26 27 28 1 Although styled as a "Second Amended Complaint", this is the first complaint brought in this Court. 1 basis for recovery against Defendant. 2 Plaintiff filed an opposition and, on November 9, 2011, Defendant 3 filed a reply. 4 Defendant renoticed the motion to dismiss for a hearing on January 5 19, 2012. 6 Court takes it under submission on the papers. 7 all the papers filed by the parties, the Court grants the motion 8 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 10 United States District Court For the Northern District of California 9 Plaintiff Marguerite Manuel-Ferrell alleges that on September 11 18, 2006 while she waited at a bus stop in Oakland California, a 12 man waved her over to his car. 13 driver's invitation. 14 protested that she was not a prostitute. 15 the man later because she believed that was the only way he would 16 let her leave, and got out of the car. 17 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 18 car arrived. 19 told her that she was being arrested on suspicion of prostitution. 20 Plaintiff alleges that Officer Veguerra slammed her against a 21 fence and the police car, then grabbed and groped her genitals. 22 According to the complaint Officer Veguerra roughly shoved her 23 baton against Plaintiff's vaginal area and between her buttocks 24 and also touched her breast and buttocks. 25 alleges that Officer Chew touched her breast with the back of his 26 hand. 27 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 28 2 1 2 LEGAL STANDARD A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” 4 Civ. P. 8(a). 5 state a claim, dismissal is appropriate only when the complaint 6 does not give the defendant fair notice of a legally cognizable 7 claim and the grounds on which it rests. 8 Twombly, 550 U.S. 544, 555 (2007). 9 complaint is sufficient to state a claim, the court will take all 10 United States District Court For the Northern District of California 3 material allegations as true and construe them in the light most 11 favorable to the plaintiff. 12 896, 898 (9th Cir. 1986). 13 to legal conclusions; “threadbare recitals of the elements of a 14 cause of action, supported by mere conclusory statements,” are not 15 taken as true. 16 (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) 17 When granting a motion to dismiss, the court is generally 18 required to grant the plaintiff leave to amend, even if no request 19 to amend the pleading was made, unless amendment would be futile. 20 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 21 F.2d 242, 246-47 (9th Cir. 1990). 22 amendment would be futile, the court examines whether the 23 complaint could be amended to cure the defect requiring dismissal 24 "without contradicting any of the allegations of [the] original 25 complaint." 26 Cir. 1990). In determining whether Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 27 28 3 1 2 DISCUSSION I. 3 Claims Under 42 U.S.C. § 1983 Plaintiff alleges that her Fourth Amendment right to be free 4 of unreasonable search and seizure was violated by Defendant and 5 that she has suffered, and continues to suffer, damages as a 6 result. 7 U.S.C. § 1983 because Plaintiff's claims arise from a single 8 incident and she pleads no facts that support the allegation that 9 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 10 A local governmental entity is liable under section 1983 when 11 actions pursuant to official municipal policy of some nature cause 12 a constitutional tort. 13 Cir. 1992); see also City of Canton v. Harris, 489 U.S. 378, 389 14 (1989). 15 it has a policy of inaction and such inaction amounts to a failure 16 to protect constitutional rights. 17 388. 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 18 Plaintiff claims that Defendant "failed to monitor the 19 conduct of Officer Veguerra after it had knowledge of her violent 20 propensities as early as 2008." 21 other incident involving Officer Veguerra and general allegations 22 that Defendant was negligent in training or supervising her. 23 However, the policy of inaction must be more than mere negligence; 24 it must be a conscious or deliberate choice among various 25 alternatives. 26 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 27 deliberate inaction, the Ninth Circuit has stated four conditions 28 that a plaintiff must satisfy: “1) [the plaintiff] possessed a 4 1 constitutional right of which he was deprived; 2) the municipality 2 had a policy; 3) this policy ‘amounts to deliberate indifference’ 3 to the plaintiff's constitutional right; and 4) the policy is the 4 'moving force behind the constitutional violation.'” 5 F.2d at 1474, (quoting City of Canton, 489 U.S. at 389–91.) 6 Liability for an improper custom may not be predicated on isolated 7 or sporadic incidents; it must be founded upon practices of 8 sufficient duration, frequency and consistency that the conduct 9 has become a traditional method of carrying out policy. United States District Court For the Northern District of California 10 11 Oviatt, 954 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Plaintiff fails to plead any facts to support the existence 12 of a custom or widespread policy of inaction in relation to 13 abusive behavior during police searches. 14 alleges that the assault on Plaintiff was stopped by another 15 officer on the scene, indicating that the practice was not 16 necessarily “persistent and widespread.” 17 Serv. of N.Y., 436 U.S. 658, 691 (1978); see also, Meehan v. Los 18 Angeles County, 856 F.2d 102 (9th Cir. 1988) (two incidents not 19 sufficient to establish custom); Davis v. Ellensburg, 869 F.2d 20 1230 (9th Cir. 1989) (manner of one arrest insufficient to 21 establish policy). In fact, the complaint Monell v. Dep't of Soc. 22 It appears from the moving papers that Plaintiff believes 23 that she has sued individual officers, and thus is not required to 24 allege that there is a "policy and practice" resulting in a 25 constitutional violation. 26 this suit is the Oakland Police Department. 27 to dismiss is granted. However, the only named Defendant in 28 5 Therefore the motion 1 2 II. Due Process Claims In the fourth cause of action Plaintiff makes fleeting 3 reference to a violation of her right to due process. 4 asserts that because the claim relates to an allegedly 5 unreasonable search and seizure, it can only be brought under the 6 Fourth Amendment. 7 Defendant All claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory 9 stop, or other “seizure” of a free citizen should be analyzed 10 United States District Court For the Northern District of California 8 under the Fourth Amendment and its “reasonableness” standard, 11 rather than under a “substantive due process” approach. 12 Connor, 490 U.S. 386, 395 (1989). 13 process in either her complaint or opposition. 14 extent that Plaintiff intended to allege a due process claim in 15 addition to her claim under the Fourth Amendment, she is barred 16 from doing so. 17 18 Graham v. Plaintiff does not argue due However, to the III. State Tort Claims Plaintiff brings one charge, negligent retention and 19 supervision, directly against Defendant, and two more claims which 20 rely on Defendant's vicarious liability for its employee's 21 actions. 22 tort claims sufficiently because she fails to state the statutory 23 basis on which the public entities are liable in the first, second 24 and third causes of action. 25 Defendant claims that Plaintiff does not plead her state Under California law a public entity is not liable under a 26 claim brought by a plaintiff unless liability is provided for by 27 statute or required by the state or federal constitution. 28 Gov. Code § 815; Cochran v. Herzog Engraving Co., 155 Cal. App. 3d 6 Cal. 1 405, 409 (1984); Lundeen Coatings Corp. v. Department of Water & 2 Power, 232 Cal. App. 3d 816, 832 (1991). 3 of public entities must be based on a specific statute declaring 4 them to be liable, or at least creating some specific duty of care 5 . . . [o]therwise, the general rule of immunity for public 6 entities would be largely eroded by the routine application of 7 general tort principles. . .” 8 Cal. App. 3d 481, 487 (1977), see also Munoz v. City of Union 9 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 10 action for government tort liability, every fact essential to the 11 existence of statutory liability must be plead with particularity, 12 including the existence of a statutory duty; duty cannot be 13 alleged simply by stating that defendant had a duty under the law. 14 Zuniga v. Housing Authority, 41 Cal. App. 4th 82, 96 (1995), 15 abrogated on other grounds by Zelig v. County of Los Angeles, 27 16 Cal. 4th 112 (2002). 17 Plaintiff does not dispute that Defendant is a public entity 18 and seems to misunderstand Defendant's argument, arguing only that 19 public entities can be held vicariously liable for the tortious 20 acts or omissions of their employees. 21 battery under codified common law provisions, without including a 22 statutory provision that would make Defendant, as a public entity, 23 liable for these torts. Plaintiff brings suit for 24 In order to state a claim, Plaintiff must include both the 25 statutory provisions which impose vicarious liability on public 26 entity employers and those which impose direct tort liability on 27 Defendant. 28 portions of the Tort Claims Act in a document attached to a Plaintiff's assertion that she cited the relevant 7 1 previous version of this complaint is insufficient. 2 only version of the complaint that has been brought in this Court 3 and it is this complaint that Defendant has moved to dismiss. 4 Accordingly, Plaintiff's state tort claims are dismissed. This is the 5 Plaintiff is granted leave to amend her complaint within 6 fourteen days so long as she can truthfully cure the deficiencies 7 noted above. 8 this case will be remanded to state court. 9 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 10 answer or file a motion to dismiss fourteen days thereafter. 11 Defendant moves to dismiss, Plaintiff's opposition shall be due 12 seven days after the motion is filed. 13 seven days after that. 14 15 16 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. 17 18 IT IS SO ORDERED. 19 20 21 Dated: 12/22/2011 CLAUDIA WILKEN United States District Judge 22 23 24 25 26 27 28 8

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