Waugh et al v. Harrington et al

Filing 23

ORDER by Judge Hamilton granting 15 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 6/5/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JEFF WAUGH, et al.,
Plaintiff(s),

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v.

No. C 11-5602 PJH
ORDER GRANTING
MOTION TO DISMISS

SCOTT HARRINGTON, et al.,
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For the Northern District of California

United States District Court

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Defendant(s).
_______________________________/

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Defendant Rob Denner’s motion to dismiss the first amended complaint came on for
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hearing on May 30, 2012. Plaintiff Jeff Waugh did not file an opposition to the motion but
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did appear at the hearing in pro per. Neither of the other plaintiffs opposed the motion or
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appeared at the hearing. Defendant appeared through counsel, Richard Osman. After
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carefully considering the papers filed by defendant and the arguments made by both
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parties, the court GRANTS the motion for the reasons stated at the hearing.
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The first amended complaint (“FAC”) asserts seven causes of action (labeled by
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plaintiff as “counts”). None of the causes of action adequately identify which defendant is
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being accused of which act nor which act comprises which violation. Defendant Denner is
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named only in paragraph 53(a) which sets forth the factual background of an incident
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occurring on February 8, 2012, after the complaint was filed. At the hearing, when asked to
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identify which causes of action were intended to be asserted against Denner, plaintiff
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identified the 3rd, 4th, 6th and 7th causes of action. The other causes of action are
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presumably asserted against the other eleven defendants.
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The four causes of action asserted against Denner are DISMISSED as they fail to
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state a claim. The third cause of action for unreasonable search and seizure is dismissed

probationary status and search condition. The fourth cause of action for excessive force is

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dismissed with leave to amend to assert the facts proffered by plaintiff at the hearing

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which support the claim. The sixth cause of action for deprivation of property without due

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process is dismissed with leave to amend to identify the property of which plaintiff was

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deprived by Denner and the manner in which Denner deprived plaintiff. The seventh cause

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of action for false imprisonment under state law is dismissed without leave to amend

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because amendment would be futile in view of the fact that plaintiff was not arrested and

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any detention was permissible by virtue of his probationary status. Moreover, plaintiff did

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not plead exhaustion of his administrative remedies by filing a claim with the public entity

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For the Northern District of California

without leave to amend as any amendment would be futile in view of plaintiff’s

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United States District Court

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being sued pursuant to Cal. Gov. Code § 905 before filing suit. Accordingly, as to Denner,

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plaintiff may re-plead the causes of action for excessive force and deprivation of property

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only.

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Further, the court sua sponte dismisses all causes of action against other non-

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moving defendants without prejudice because a more definite statement of plaintiff’s claims

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is needed before discovery commences. Specifically, the first cause of action alleging

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general constitutional violations is dismissed with prejudice as it is duplicative of the

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specific constitutional violations alleged elsewhere in the complaint. The second through

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seventh causes of action shall be re-numbered and the heading for each, shall identify

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each defendant against whom the claim is brought. Additionally, in the text of each cause

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of action, plaintiff shall set forth which incidents comprise the particular cause of action.

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The state claim for false imprisonment, may not be re-stated unless plaintiff can plead that

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he did file a tort claim before filing suit.

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Plaintiff is further reminded that as a non-lawyer pro per litigant, he may not

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represent the other two plaintiffs. Moreover, it is not clear from the complaint which cause

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of action can even be asserted by the other plaintiffs given the facts alleged. If they wish to

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proceed, the amended complaint must set forth the facts that involve them and must

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identify which cause(s) of action is brought by the other plaintiffs as well as Waugh. Of

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course, they may also voluntarily dismiss their claims and remove their names from the

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amended complaint if they do not wish to proceed. No pleading, motion or response will

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apply to the other plaintiffs, unless they sign the document. The amended complaint shall

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be titled “Second Amended Complaint” and shall be filed by June 27, 2012. No additional

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parties or causes of action may be added to the complaint without leave of court.

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Responsive pleadings shall be filed within 28 days after the filing of the amended

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complaint.

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Dated: June 5, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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