Felarca et al v. Birgeneau et al

Filing 99

TENTATIVE ORDER ON MOTIONS TO DISMISS. No later than 2:00pm on Monday, 2/25/2013 the parties shall file a Joint Statement as stated in this Order Signed by Judge Yvonne Gonzalez Rogers on 2/22/2013. (fs, COURT STAFF) (Filed on 2/22/2013)

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1 2 UNITED STATES D ISTRICT CO OURT 3 NORTHE DISTRIC OF CALIF ERN CT FORNIA 4 5 ETTE FELAR RCA et al., YVE 6 Plaintiff, 7 8 C Case No.: 11 1-CV-05719 YGR T ENTATIVE ORDER ON MOTIONS TO DISMISS vs. ROB BERT J. BIRG GENEAU et al., a 9 Defe endant(s). 10 United States District Court Northern District of California 11 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD , PLEASE TA NOTICE OF THE FOLLOWING A S S D AKE E 12 TEN NTATIVE RUL LING ON THE MOTIONS TO DISMISS SC O CHEDULED FO HEARING ON FEBRUA OR G ARY 26, 2013 3 13 AT 2:00 P.M. 2 The Cou has review the parties’ papers a is incline to partiall grant the motions to urt wed and ed ly 14 15 dism filed by the Alamed County Sh miss y da heriff’s Offic Defendan (Dkt. No. 50) and the University ce nts . e 16 of California Po C olice Departm Defend ment dants (Dkt. N 58) (coll No. lectively “Po olice Officer r 17 Defe fendants”) an grant the motion filed by the UC A nd m d Administrat (Dkt. No 57). This ruling would tors o. 18 dism with lea to amend all claims against all de miss ave d a efendants ex xcept for Cou IV for ex unt xcessive 19 forc against the Police Offi Defenda Chavez, Garcia, Kin Obichere and Saman Lachler ce e ficer ants , ng, e, ntha r. 20 This is a tentativ ruling and the parties still have an opportunity to present oral argume s ve d n y ent. 21 Alte ernatively, if the parties JOINTLY stip f pulate in wr riting to entry of the tentative ruling, the hearing y 22 shal be taken of calendar, and the tenta ll ff ative ruling s shall becom the Order of the Court me t. The Cou TENTATIV urt VELY DENIE IN PART a ES and GRANTS IN PART the motions of the Police S e f 23 24 Offi Defenda and GRA icer ants ANTS the Mo otion of the U Adminis UC strators, each with LEAV TO h VE 25 AME as follo END ows: 26 I. INTROD DUCTION 27 Plaintiff bring this civil rights action agains administra fs c a st ators of the U University of California, f 28 Berk keley (“UC Berkeley”) and police of B a fficers from the Univers of Califo sity ornia Police Department 1 (“UCPD”) and Alameda County Sheriff’s Office (“ACSO”) for injuries suffered when UC Berkeley 2 administrators allegedly ordered the police to brutally and violently break up a peaceful protest that 3 took place on the UC Berkeley campus on November 9, 2011. Plaintiffs’ First Amended Complaint (“FAC”), which spans 499 paragraphs and 65 pages, 4 alleges six claims on behalf of twenty nine individual plaintiffs against seventeen individual 6 defendants. Despite its length, the FAC fails significantly to identify which claim is brought on 7 behalf of whom or against whom, an issue which must be rectified.1 The six claims are for: (1) 8 Police Force in Violation of the First Amendment of the United States Constitution; (2) Abuse of 9 Process in Violation of the First and Fourth Amendments of the United States Constitution; (3) 10 Retaliatory Prosecution in Violation of the First and Fourth Amendments of the United States 11 United States District Court Northern District of California 5 Constitution; (4) Excessive Force in Violation of the Fourth Amendment of the United States 12 Constitution; (5) False Arrest (“Seizure”) in Violation of the Fourth Amendment of the United 13 States Constitution; and (6) Conspiracy to Violate Plaintiffs’ First, Fourth, and Fourteenth 14 Amendment Rights. The Defendants have filed three motions to dismiss Plaintiffs’ Amended Complaint. Their 15 16 arguments fall into several broad categories: (1) the Plaintiffs’ allegations do not allege the 17 violation of a clearly established right, (2) do not allege sufficient (or any) personal involvement of 18 the Defendants in the challenged actions, (3) are too conclusory to overcome a qualified immunity 19 defense, and (4) the Defendants were not the legal cause of Plaintiffs’ damages, if any. Permeating 20 these arguments is a dispute of the Plaintiffs’ characterization of the protest and the Defendants’ 21 response to that protest, including whether Defendants used excessive force, whether Defendants’ 22 actions were a result of objections to Plaintiffs’ message, and whether Plaintiffs were harmed. 23 Having carefully considered the papers submitted and the Amended Complaint, for the 24 reasons set forth below, the Court hereby DENIES IN PART and GRANTS IN PART the motions of the 25 police officer defendants and GRANTS the Motion of the UC Administrators. For those police 26 officers whom Plaintiffs specifically identify as having used force against them, Plaintiffs have 27 1 28 Plaintiffs have since clarified that only Count IV, alleging Excessive Force, is asserted against the police officers. 2 1 state a claim fo excessive force. For those police officers not alleged to h ed or t have used an force ny 2 agai the prote inst estors, Plaint tiffs fail to state a claim for excessiv force. To the extent n otherwise s ve o not e 3 alleg the UC Administrat cannot be held indiv ged, tors b vidually liab for the all ble legedly unco onstitutional 4 acts of police of fficers based solely on th position within the c d heir campus adm ministration o conclusory or y 5 gations that they planned and coordi d inated a poli assault on the protest ice n tors. LEAVE TO AMEND E alleg 6 is GRANTED. 7 II. 8 9 GROUND BACKG The claim in this ca arise from events tha took place in connectio with prot activities ms ase m at e on test s on th UC Berkeley campus on Novemb 9, 2011. The FAC a he s ber alleges: that day, “thousands of stud dents and com mmunity me embers marc ched, rallied and peacefu set up pr ully rotest tents in defense of n f 11 United States District Court Northern District of California 10 the integrity of the University as a publi institution against fee hikes and the privatizat i t ic n, e tion of publi ic 12 educ cation, and for increasin black, Latina/o, and N f ng Native Ameri ican student enrollment.” (FAC ¶ 1. .) 13 Poli wearing riot gear use batons to clear protest ice r ed c tors from the area and ta down ten that had e ake nts 14 been erected. In the course of clearing the tents and protestors, the police v n n t d viciously bea the at 15 prot testors. Whi brutalizin the protestors, the pol officers indiscrimina ile ng lice ately, and wi ithout 16 prob bable cause, falsely arres and imp sted prisoned ove forty prote er estors, includ ding five of t Plaintiffs the s 17 in th action. Plaintiffs alle that “Chancellor Birg his P ege geneau and other admin nistrators of U Berkeley UC y 18 coor rdinated and conducted a planned, violent attack against these peaceful p d v k protesters be ecause they 19 oppo osed the pro otesters’ defe ense of affordable, public education and their ass sociation with the c 20 popu ‘Occupy Wall Stree movemen (Id. ¶ 2. ) ular y et’ nt.” 21 A. 22 In the af fternoon of November 9, 2011, prote N , esters erected an “Occup d py”-style enc campment on n “OCCUPY” CAL “ 23 the lawn near Sp l proul Hall on the UC Be n erkeley camp pus. (Id. ¶¶ 76-77.) Due to the UC e 24 Adm ministrators’ past toleran response to protestors setting up te on camp the prot nt o ents pus, testors 25 assu umed they would be able to set up pr w e rotest tents w without incid dent. Unlike previous pr e rotests, 26 27 28 3 1 however, Plaintiffs allege that the UC Administrators disagreed with the protestors’ message and 2 sought to “chill” their speech.2 3 1. Afternoon Raid That afternoon, police officers raided the encampment to take down the tents. Dozens of 4 5 police officers, including officers from UCPD and ACSO, showed up in riot gear. Protestors 6 gathered around the tents, with some linking arms. “At about 3:30 pm, the police forcefully 7 attacked students, pushing with the broad side of their batons, jabbing students with the ends of their 8 batons in students’ stomachs, chests, ribs, legs, backs, and groins, using overhand strikes and 9 headlocks, and yanking people out by their hair and arresting them.” (Id. ¶ 82.) The police cleared 10 the tents and, at about 3:55 pm, the police retreated. (Id. ¶¶ 86-87.) After the police cleared the encampment, protestors erected more protest tents in the same United States District Court Northern District of California 11 12 area. (Id. ¶ 88.) “At 5:36 pm, defendant Chancellor Birgeneau, in an email to defendant [UC 13 Administrators] … stated: ‘It is critical that we do not back down on our no encampment policy.’” 14 (Id. ¶ 89.) “At or around 6:15 pm, Vice Chancellor of Student Affairs Harry LeGrande … read a 15 statement [to the protestors], declaring that the administration would allow protesters to stay on 16 Sproul Plaza, but they could not have protest tents.” (Id. ¶ 90.) By 9:00 pm, hundreds of protestors 17 had gathered in Sproul Plaza. (Id. ¶ 92.) Vice Chancellor LeGrande announced that protesters had 18 until 10:00 pm to remove the tents before the police would show up, give a ten-minute warning, and 19 remove the tents by force. (Id. ¶ 147.) 20 2. Evening raid At 9:30 pm, the police showed up in riot gear and raided the encampment. (Id. ¶ 148.) 21 22 Protestors linked arms to face the police. As in the afternoon, the officers used batons, but this time 23 with even more brutality, pushing and jabbing people and using overhand strikes on protestors’ 24 heads. (Id. ¶ 95.) The officers grabbed and indiscriminately pulled some of the protestors out of the 25 lines and placed them under arrest. (Id. ¶ 98.) Once the officers gained access to the tents, the 26 27 28 2 Plaintiffs allege that UC Berkeley Administrators previously permitted camping where they agreed with the protestors’ message: first in 1985 when students protested against South African Apartheid and more recently, in May 2010 protestors camped in front of Chancellor Birgeneau’s home, (FAC ¶ 73) which Plaintiffs explain in their opposition brief was in protest of Arizona’s immigration law, SB 1070. 4 1 officers dismantled the tents. (Id. ¶ 99.) However, even after clearing the encampment, the police 2 continued to beat the protestors. (Id. ¶ 101.) During this time, other students hurried to Sproul Plaza 3 from across campus to defend the protesters. (Id. ¶ 103.) Over two thousand people amassed before 4 police ceased their attack on the protestors. (Id.) 5 B. 6 The Plaintiffs in this action were among the protestors who participated in the Occupy Cal 7 protest and consist primarily of current and former students of UC Berkeley, as well as organizers 8 with the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for 9 Equality By Any Means Necessary (“BAMN”). (See id. ¶¶ 21-50.) They allege they were beaten by THE PARTIES the police during the raids on the encampment. Five of the Plaintiffs, Francisco Alvarado-Rosas, 11 United States District Court Northern District of California 10 Julie Klinger, Anthony Morreale, Sachinthya Wagaarachchi, and Taro Yamaguchi-Phillips, were 12 among those arrested on November 9, 2011, which they allege was false arrest.3 (Id. ¶¶ 488, 493.) 13 Another five Plaintiffs, Yvette Felarca, Joshua Anderson, Ashley Pinkerton, Erick Uribe, and Justin 14 Tombolesi, were not arrested on November 9, 2011, but subsequently were charged with 15 misdemeanors for their actions in connection with the Occupy Cal protest, which Plaintiffs allege 16 constitutes retaliatory prosecution and abuse of process. (Id. ¶¶ 6, 466.)4 Plaintiffs seek to impose liability not only on the police officers who directly engaged in 17 18 allegedly unconstitutional conduct but also on the UC Administrators, whom Plaintiffs allege 19 disagreed with Plaintiffs’ message and directed the officers to break up the protest by using 20 excessive force. The Defendants are: (1) administrators of UC Berkeley, including former 21 3 22 They contend that they were not violating any laws or regulations and the officers gave no grounds for their arrests, and note that they were not prosecuted for violating any laws or regulations. (Id. ¶¶ 489 491.) 23 4 24 25 26 27 28 Each was arraigned on misdemeanor charges including willfully resisting, delaying or obstructing a police officer, in violation of California Penal Code § 148(a)(1), and willfully and maliciously obstructing the free movement of any person on a place open to the public, in violation of California Penal Code § 647c. (FAC ¶¶ 136, 190, 353, 392, 409.) Plaintiffs allege that the initiation of these proceedings constitutes retaliatory prosecution and abuse of process. At their arraignments, the District Attorney requested, and the Superior Court granted, “stay away” orders, which prohibited them from being within one hundred yards of property belonging to the University of California, except for class-related and work-related official business. (Id. ¶¶ 7, 472.) Later, the District Attorney requested that the orders be rescinded, and the charges were dropped. (Id. ¶ 117.) Plaintiffs allege that obtaining “stay away” orders constitute abuse of process. 5 1 Cha ancellor Robert J. Birgen neau, Execut Vice Ch tive hancellor and Provost Ge d eorge Bresla auer, and Vic ce 2 Cha ancellor of St tudent Affai Harry Le Grande (col irs llectively “U Administ UC trators”); and (2) UCPD d 3 Offi icers N. Hern nandez and Samantha Lachler, and U S UCPD Detec ctive Rick F Florendo; and (3) ACSO d 4 Chie Gregory Ahern, and ACSO Office Chavez, Garcia, King, and Obich (the UC ef A A ers here CPD and 5 ACS Officers are collectiv referred to as “Polic Officer D SO vely d ce Defendants”). . All of th hese Defenda have file motions t dismiss. ants ed to 6 7 III. A motion to dismiss under Rule 12(b)(6) tes the legal s n sts sufficiency o the claims alleged in of s 8 9 LEGAL STANDAR L RD the complaint. Ileto v. Gloc Inc., 349 F.3d 1191, 1 199-1200 (9 Cir. 2003 To withs c I ck F 9th 3). stand a mot tion to dismiss, “a compl laint must co ontain suffic cient factual matter, acce epted as true, to ‘state a 11 United States District Court Northern District of California 10 claim to relief th is plausib on its fac m hat ble ce.’” Ashcro v. Iqbal, 5 U.S. 662 678 (2009 (quoting oft 556 2, 9) 12 Bell Atl. Corp. v. Twombly, 550 U.S. 54 557 (2007 Althoug “detailed factual alleg l v 44, 7)). gh d gations” are 13 not required, pla r aintiffs’ obligation to pro ovide the gro ounds for their entitleme to relief “ ent “requires 14 mor than labels and conclu re s usions, and a formulaic r recitation of the elements of a cause of action wi s ill 15 not do.” Twomb supra, 550 U.S. at 555 (citations and quotati bly, 5 s ions omitted “[W]here the welld). e 16 plea aded facts do not permit the court to infer more t o than the mer possibility of miscond re y duct, the 17 com mplaint has al lleged—but it has not ‘show[n]’—‘t that the plead is entitle to relief.’” See Iqbal, der ed ” 18 supr 556 U.S. at 679. ra, 19 IV. Title 42, Section 198 of the Un , 83 nited States C Code (“Secti 1983”)5 p ion provides a cause of 20 21 SSION DISCUS actio against persons acting under colo of state law who have violated rig guarante by the on g or w ghts eed 22 5 23 24 25 26 27 28 Co ounts I through V are broug pursuant to 42 U.S.C. 1 h ght t 1983 and Cou VI is brou unt ught under 42 U.S.C. § 1985 Section 19 provides: 5. 983 Every per rson who, und color of any statute, or der a rdinance, regu ulation, custom, or usage, of any State or Territory or th District of Columbia, su T he ubjects, or cau to be sub uses bjected, any c citizen of the Un nited States or other person within the ju r n urisdiction the ereof to the d deprivation of any f rights, privileges, or im mmunities sec cured by the C Constitution a laws, sha be liable to the and all o party inju ured … 42 U.S.C. § 1983. U 1 s: Section 1985 provides If two or more persons in any State or Territory conspire or g in disguise on the highw or s e go way on the pre emises of ano other, for the purpose of de p epriving, eithe directly or indirectly, an er ny 6 1 United States Constitution. See Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); 2 Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir. 1984). Section 1983 does not itself create a 3 protectable right, but rather, it provides a federal cause of action for violation of federally protected 4 rights. To state a claim under Section 1983, a plaintiff must plead four elements: (1) conduct by “a 5 person”; (2) acting “under color of state law”; (3) proximately caused (4) the deprivation of a 6 federally protected right. OSU Student Alliance v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2012). 7 Defendants argue that Plaintiffs fail to allege the third and fourth elements, deprivation of a 8 constitutional right or causation. 9 The Court starts its analysis with (A) the excessive force claims brought against the Police Officer Defendants. After that, the Court will address (B) the arguments of the UC Administrators 11 United States District Court Northern District of California 10 against whom Plaintiffs seek to impose liability based upon the actions of the Police Officer 12 Defendants. Then the Court will address (C) Plaintiffs’ remaining claims. 13 A. 14 Plaintiffs have clarified that Count IV for Excessive Force is the only claim brought against 15 the Police Officer Defendants. The Police Officer Defendants argue that the Plaintiffs fail to allege 16 facts sufficient to support a claim that any of them used excessive force against any Plaintiff. Thus, 17 the Police Officer Defendants assert that the FAC does not allege any of them deprived any Plaintiff 18 of a federally protected right. 19 POLICE OFFICER DEFENDANTS: 4TH AMENDMENT EXCESSIVE FORCE (COUNT IV) All excessive force claims are assessed under a Fourth Amendment “reasonableness” 20 standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The inquiry is “whether the officer’s 21 actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without 22 regard to their underlying intent or motivation.” Id. at 397. The relevant facts and circumstances 23 include “the severity of the crime at issue, whether the suspect poses an immediate threat to the 24 safety of the officers or others, and whether he is actively resisting arrest or attempting to evade 25 26 27 28 person or class of persons of the equal protection of the laws, or of equal privileges and immunities … [and] if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages … 42 U.S.C § 1985(3). 7 1 arrest by flight.” Id. The reasonableness test “requires a careful balancing of ‘the nature and quality 2 of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing 3 governmental interests at stake.” Id. at 396 (internal citations omitted). 4 1. UCPD Officer Lachler 5 UCPD Officer Lachler asserts that her use of force was “reasonable” under the Fourth 6 Amendment “reasonableness” standard, or at least her conduct was not “‘clearly’ unreasonable” and 7 argues she is entitled to qualified immunity. The defense of qualified immunity protects 8 “government officials … from liability for civil damages insofar as their conduct does not violate 9 clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A court considering a claim of qualified 11 United States District Court Northern District of California 10 immunity must determine whether the plaintiff has alleged the deprivation of an actual constitutional 12 right and, if so, whether the right was clearly established such that it would be clear to a reasonable 13 officer that her conduct was unlawful in the situation she confronted. See Pearson v. Callahan, 555 14 U.S. 223, 236 (2009). Officer Lachler argues that her use of force was necessary to counter the combativeness of 15 16 the protestors. She avers that the protestors made a show of force by linking arms6 and were 17 challenging the police officers’ authority; disobeying police orders; committing the crime of illegal 18 encampment; and interfering with her performance of police duties. Officer Lachler’s version of the 19 events, however, is inconsistent with the factual allegations in the FAC, which the Court must accept 20 as true. See Saucier v. Katz, 533 U.S. 194, 201 (2001). According to the FAC, at approximately 3:30 pm on November 9, 2011, Plaintiff Hayden 21 22 Harrison was linking arms with other protestors. (FAC ¶ 254.) The “police made an announcement 23 over a megaphone, [which] Mr. Harrison could not hear.” (Id. ¶ 255.) Five to ten minutes later, the 24 officers began jabbing people hard with their batons. (Id. ¶¶ 256-57.) “The officers were ordering 25 him and others to move back, but this was impossible because of the crowd behind them.” (Id. ¶ 26 260.) 27 6 28 Lachler also cites to a paragraph in the FAC, which alleges that the protestors surrounded the protest tents, to argue that the protestors surrounded the police. 8 1 As to Officer Lachler’s specific use of force: “Defendant Officer Lachler was trying to hit 2 [Mr. Harrison] in the groin with the edge of her baton. She did hit his groin and it hurt very badly. 3 He had a stomach ache for several hours afterward.” (Id. ¶ 258.) At this pleading stage, Officer Lachler is not entitled to qualified immunity as to Plaintiffs’ 4 5 Fourth Amendment Excessive Force claim. Viewing the facts in the light most favorable to the 6 Plaintiffs, police officers, who were attempting to enforce a no camping ordinance at 3:30 pm, made 7 a dispersal announcement that protestors could not hear, and then the police officers began hitting 8 protestors that were trapped in a crowd. The facts and circumstances confronting the officers, when 9 viewed in the light most favorable to the Plaintiffs, do not support an inference that Mr. Harrison posed a threat to the safety of the officers or others, was disobeying police orders or camping. 11 United States District Court Northern District of California 10 Rather, the well-pled facts support an inference that Office Lachler hit a passive individual in the 12 groin because, by linking arms with other protestors, he may have inhibited her progress. The Plaintiffs’ description of the events suggests that Officer Lachler may not have been 13 14 justified in this use of force. Officer Lachler challenges the truth of these allegations and offers a 15 starkly different version of events. However, Officer Lachler does not assert that hitting a passive 16 protestor is constitutional or that the law regarding the use of force against passive individuals was 17 sufficiently unclear at the time of the events at issue that Officer Lachler made a reasonable mistake 18 as to what the law requires. Therefore, Officer Lachler is not entitled to qualified immunity as to the 19 excessive force claim and Plaintiffs may pursue this claim against her. Based on the foregoing analysis, the Court DENIES the Motion to Dismiss Count IV against 20 21 Officer Lachler. 22 2. ACSO Officers Chavez, Garcia, King, Obichere The ACSO Defendants move for dismissal of the excessive force claim on the basis that 23 24 “Plaintiffs’ allegations are conclusory, legal conclusions, unwarranted deductions of fact or 25 unreasonable inferences.” Those allegations include the following: 26 27 28  Officer Chavez told Plaintiff Felarca to “get out of the way if you don’t want to be beaten,” and then Officer “Chavez and a second unidentified officer focused their batons on Ms. Felarca. … Ms. Felarca was hit in the right side area of her abdomen. When she went to the hospital later, she was told her liver was beneath that injured 9 area. … She suffered multiple contusions on her ribs and midsection.” (FAC ¶¶ 121, 124, 126, 130.) 1 2  “Officer Garcia continuously jabbed [Plaintiff Joseph Finton] with the end of his baton, in his legs and in his chest. … His chest and legs hurt, and the pain got worse the next day. He had bruises on his chest and legs. He walked with a limp.” (Id. ¶¶ 247, 253.) 5  “Officer King hit Ms. Escobar in her right breast and rib area.” (Id. ¶ 241.) 6  8 “Officer Obichere of the Alameda County Sheriff’s Office, who appeared to weigh over 250 pounds, focused on [Plaintiff Christopher] Anderson and hit him with tremendous force about five times with increasing intensity. In addition to jabs, this officer used overhand swings and struck Mr. Anderson’s leg as well.” (Id. ¶ 169.) 9 These are not “unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Iqbal, 3 4 7 supra, 556 U.S. at 678. Alleging that a police officer “used excessive force” is a legal conclusion, 11 United States District Court Northern District of California 10 but alleging that a police officer used overhand swings to strike the plaintiff is not. Plaintiffs “plead[ 12 ] factual content that allows the court to draw the reasonable inference that the defendant[s are] 13 liable for the misconduct alleged.” Id. (citing Twombly, supra, 550 U.S. at 556). Therefore, as to 14 ACSO Officers Chavez, Garcia, King and Obichere, the Plaintiffs have pled “sufficient factual 15 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (citing Twombly, 16 supra, 550 U.S. at 570). 17 Based on the foregoing analysis, the Court DENIES the ACSO Defendants’ Motion to 18 Dismiss to the extent it seeks dismissal of Count IV for Excessive Force against Officers Chavez, 19 Garcia, King and Obichere. 20 21 3. Remaining Officers. As to the remaining Police Officer Defendants, UCPD Detective Florendo, UCPD Officer 22 Hernandez, and ACSO Chief Ahern, Plaintiffs do not specifically allege any of them used force 23 against the Plaintiffs. Generalized allegations that “the named defendant officers and the defendants 24 Does 1-100 used excessive force” and “[t]he defendant officers attacked people,” (see id. ¶¶ 484- 25 85), fail to state claims for excessive force against Detective Florendo or Officer Hernandez. 26 Additionally, Plaintiffs do not object to the dismissal of all claims brought against Gregory Ahern, 27 Chief of the ACSO, against whom no misconduct is alleged. 28 10 Therefore, as to Detective Florendo, Officer Hernandez, and Chief Ahern, only, the Court 1 2 GRANTS the Motion to Dismiss the Fourth Amendment Excessive Force claim. 3 4. Conclusion Regarding Excessive Force Claims Against Police Officers. Based on the foregoing analysis, the Court DENIES IN PART and GRANTS IN PART the Police 4 5 Officers Defendants’ Motions to Dismiss Count IV for Excessive Force. The Court DENIES the 6 Motions to Dismiss Count IV as to ACSO Officers Chavez, Garcia, King, Obichere and UCPD 7 Officer Samantha Lachler. The Court GRANTS the Motion to Dismiss Count IV as to UCPD 8 Detective Florendo, UCPD Officer Hernandez and ACSO Chief Ahern. The Court DISMISSES 9 Count IV against Detective Florendo and Officer Hernandez WITH LEAVE TO AMEND and 10 DISMISSES Count IV against Chief Ahern WITH LEAVE TO FILE A MOTION TO AMEND. United States District Court Northern District of California 11 B. 12 Defendant UC Administrators move to dismiss the Section 1983 claims against them, 13 arguing that the FAC lacks the requisite factual detail necessary to hold them individually liable for 14 the allegedly unconstitutional conduct of the Defendant Police Officers. The UC Administrators 15 argue that the FAC is devoid of factual allegations that would establish that any caused Plaintiffs’ 16 alleged injuries so as to hold any of them individually liable for the Plaintiffs’ injuries. Plaintiffs 17 argue that the UC Administrators are liable for the police officers’ unconstitutional acts because as 18 supervisors they set in motion, or knew of but failed to stop, a series of acts by the police officers 19 that caused Plaintiffs’ constitutional injuries. 20 CLAIMS AGAINST THE UC ADMINISTRATORS DEFENDANTS 1. Supervisory Liability Supervisors may not be held liable in a Section 1983 action for the unconstitutional acts of 21 22 their subordinates under a respondeat superior7 theory of liability. See Taylor v. List, 880 F.2d 23 1040, 1045 (9th Cir. 1989). Rather, “each Government official, his or her title notwithstanding, is 24 only liable for his or her own misconduct.” Iqbal, supra, 556 U.S. at 677. Because vicarious 25 liability is inapplicable to Section 1983 suits, Plaintiffs must plead that each defendant, through his 26 27 28 7 Respondeat superior is Latin for “let the superior make answer.” It is a doctrine holding an employer liable for an employee’s wrongful acts committed within the scope of employment. Black’s Law Dictionary (9th ed. 2009). 11 1 or her individual actions, has violated the Constitution. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2 2011). A supervisor may be liable under Section 1983 upon a showing of (1) personal involvement 3 in the constitutional deprivation or (2) a sufficient causal connection between the supervisor’s 5 wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th 6 Cir. 2012) (citing Starr, supra, 652 F.3d at 1207). “The requisite causal connection may be 7 established when an official sets in motion a ‘series of acts by others which the actor knows or 8 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II v. 9 Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 10 F.2d 740, 743 (9th Cir. 1978)). Allegations that are simply “bald” or “conclusory” statements that 11 United States District Court Northern District of California 4 merely recite the elements of a claim do not “plausibly” establish the supervisor’s personal liability 12 for a subordinate’s constitutional wrong. Iqbal, supra, 556 U.S. at 675-84. 13 2. Adequacy of Allegations Against the UC Administrator Defendants The vast majority of Plaintiffs’ allegations against the UC Administrators lump all seven 14 15 administrators together without differentiating their respective roles in the alleged wrongdoing. For 16 the most part, Plaintiffs make generalized allegations that Chancellor Birgeneau and the other UC 17 Administrators “planned, coordinated, and ordered the police attack and indiscriminate arrests of 18 plaintiffs.” (FAC ¶ 495.) “These bare assertions, much like the pleading of conspiracy in Twombly, 19 amount to nothing more than a ‘formulaic recitation of the elements’ of a constitutional [tort],” 20 Iqbal, supra, 556 U.S. at 680-81 (quoting Twombly, supra, 550 U.S. at 555), devoid of further 21 factual enhancement from which to infer more than the mere possibility of misconduct.8 Although 22 these bare allegations may be “consistent with” a finding of liability against the other UC 23 24 25 26 27 28 8 In Iqbal, the plaintiff alleged that Attorney General John Ashcroft and other high ranking government officials “‘knew of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of confinement ‘as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest’” and “that Ashcroft was the ‘principal architect’ of this invidious policy.” 556 U.S. at 680. The Supreme Court held that these allegations were not entitled to the assumption of truth because they are conclusory, and “amount to nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim.” Id. at 680-81 (quoting Twombly, supra, 550 U.S. at 555). 12 1 Administrators, such allegations “stop[ ] short of the line between possibility and plausibility of 2 ‘entitlement to relief.’” Iqbal, supra, 556 U.S. at 678 (quoting Twombly, supra, 550 U.S. at 557). 3 The only specific factual allegations relate to an email by Chancellor Birgeneau and a public 4 statement by Vice Chancellor Le Grande that the protestors could remain at Sproul Plaza but not 5 camp. (See FAC ¶¶ 89, 90, 105, 147). Chancellor Birgeneau emailed: “It is critical that we do not 6 back down on our no encampment policy,” (id. ¶ 89), after which Vice Chancellor Le Grande 7 announced to the protestors a plan to have police officers clear the encampment if the protestors did 8 not remove the tents by 10:00 pm. (Id. ¶¶ 105, 147.) These allegations are sufficient to connect the 9 actions of Chancellor Birgeneau and Vice Chancellor Le Grande to police officers clearing the encampment. Nevertheless, until Plaintiffs identify which specific cause of action is brought against 11 United States District Court Northern District of California 10 which specific defendant(s), the Court is not able to determine whether these facts are sufficient to 12 connect Chancellor Birgeneau and Vice Chancellor Le Grande to any unconstitutional acts. 13 The remaining UC Administrators have administrative responsibilities regarding campus 14 emergency procedures. Based upon the lone allegation that certain UC Administrators were 15 members of the “Crisis Management Team” who were assigned responsibility for overseeing the 16 campus response to protests, and numerous facts of which the Plaintiffs request the Court to take 17 judicial notice, Plaintiffs argue, but do not allege, that the UC Administrators “set in motion, or 18 knew of but failed to stop, the injuries done to the plaintiffs.” (Opp’n to UC Defs.’ Mot. 17.) The 19 Court will not infer critical facts not supported by allegations in the FAC. 20 Based on the foregoing analysis, Plaintiffs fail to allege sufficient facts to hold all of the UC 21 Administrators individually responsible for the allegedly unconstitutional conduct of the police in 22 breaking up the protests on November 9, 2011. 23 C. 24 The foregoing analysis specifically addressed only one cause of action, Plaintiffs’ claim for 25 Fourth Amendment Excessive Force (Count IV). Plaintiffs’ remaining claims were not addressed. 26 Those claims are for First Amendment Retaliation (Count I); Abuse of Process (Count II); 27 Retaliatory Prosecution (Count III); Fourth Amendment False Arrest (Count V); and Conspiracy to 28 Violate Civil Rights (Count VI). PLAINTIFFS’ REMAINING CLAIMS 13 1 Plaintiff have expla fs ained that because Count IV for Exce t essive Force is the only claim e 2 brou ught against the Police Officer Defen O ndants, Plain ntiffs do not object to dis smissal of th remaining he g 3 claim against th Police Of ms he fficer Defend dants. There efore, the Co DISMISS all other ourt SES r 4 claim ms―Counts I, II, III, V, and VI―ag s , gainst the Po olice Officer Defendants (ACSO Chi Ahern, r s ief 5 ACS Officers Chavez, Ga SO arcia, King, Obichere, UC O CPD Detecti Florendo and UCPD Officers ive o, D 6 Hern nandez and Lachler). Based on Plai L intiffs’ repre esentation tha Plaintiffs are not asser at rting these 7 claim against th Police Of ms he fficer Defend dants, Plaint tiffs will nee to file a m ed motion for lea to amend ave d 8 if th seek to amend their complaint to state any of these cause of action a hey a c o f es against any o the Police of e 9 Offi Defenda icer ants. Addition nally, Plainti have not addressed a of the De iffs t any efendants’ m meritorious a arguments fo or 10 United States District Court Northern District of California 11 dism missal of thei claims for Abuse of Process (Coun II), Retali ir r unt iatory Prosec cution (Coun III), and nt 12 Con nspiracy to Violate Civil Rights (Cou VI), whic the Court construes to be an aban V unt ch t o ndonment of f 13 thes claims. Th se herefore, Pla aintiffs will need to file a motion for leave to am n r mend if they seek to 14 ame their com end mplaint to sta any of th ate hese causes o action. As to the claim against th UC of s ms he 15 Adm ministrators, leave to am mend is grante for Count I, IV, and V, only. ed ts 16 V. CONCL LUSION 17 For the reasons set forth above, the Court ten r fo t ntatively OR RDERS as follows: 18 (1) 19 The Motion to Dismiss filed by Defe T t fi endants Greg gory Ahern, Chavez, Ga arcia, King, and Obichere (D No. 50) is DENIED IN PART and GRANTED IN PART: Dkt. d 20 a) The Motion is DENIED as to C M E Count IV ag gainst Defend dants Chave Garcia, ez, 21 King, and Obiche , ere. Plaintiff may pursu their claim for excess force ffs ue m sive 22 again Defendan Chavez, G nst nts Garcia, King and Obich g, here. 23 b) The Motion is GRANTED as t all claims against Gregory Ahern, and Counts M R to , 24 I, II, III, V, and VI against De I V efendants Ch havez, Garci King, and Obichere, ia, d 25 WITH LEAVE TO FILE A MO H OTION TO AM MEND. 26 (2) The Motion to Dismiss filed by Defe T t fi endants Robe J. Birgen ert neau, George Breslauer, e 27 Mitc chell Celaya Claire Holmes, Harry Legrande, L a, L Linda William and John Wilton (Dk No. 57) is ms, n kt. 28 GRA ANTED: 14 a) WITH LEAVE TO AMEND the claims for First Amendment Retaliation (Count 1 2 I); Fourth Amendment Excessive Force (Count IV); and Fourth Amendment 3 False Arrest (Count V), and b) WITH LEAVE TO FILE A MOTION TO AMEND the claims for Abuse of 4 5 Process (Count II); Retaliatory Prosecution (Count III); and Conspiracy to 6 Violate Civil Rights (Count VI). (3) 7 8 The Motion to Dismiss filed by Defendants Rick Florendo, Samantha Lachler, and N. Hernandez (Dkt. No. 58) is DENIED IN PART and GRANTED IN PART: a) The Motion is DENIED as to Count IV against Defendant Samantha Lachler. 10 Plaintiffs may pursue their claim for excessive force against Defendant 11 United States District Court Northern District of California 9 Samantha Lachler. b) The Motion is GRANTED as to all claims against Rick Florendo and N. 12 13 Hernandez, and Counts I, II, III, V, and VI against Samantha Lachler, WITH 14 LEAVE TO AMEND Count IV, and WITH LEAVE TO FILE A MOTION TO 15 AMEND Counts I, II, III, V, and VI. 16 (4) 17 No later than 28 days from the date this Order is filed, Plaintiffs shall file one of the following: 18 a) Second Amended Complaint; 19 b) Motion for Leave to Amend the First Amended Complaint to add claims for which leave to amend was not granted9; or 20 21 c) Statement indicating that they will proceed on Count IV of the First Amended 22 Complaint against Defendants Chavez, Garcia, King, Obichere, and Samantha 23 Lachler. 24 No later than 2:00 p.m. on Monday, February 25, 2013, the parties shall file a JOINT 25 statement either (1) stipulating in writing to entry of this tentative ruling; or (2) briefly identifying 26 the issue or issues on which they wish to argue. If the parties stipulate to entry of the tentative 27 9 28 Should Plaintiffs proceed with this option, they shall file as an exhibit, a proposed Second Amended Complaint, see Civil L.R. 10-1, which highlights those claims for which leave to amend is requested. 15 1 ruling, then the hearing shall be taken off calendar, and the tentative ruling shall become the order of 2 the Court. If the parties do not so stipulate, the hearing shall be held as scheduled. 3 IT IS SO ORDERED. 4 5 6 Date: February 22, 2013 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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