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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UNITED STATES D ISTRICT CO
OURT

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NORTHE DISTRIC OF CALIF
ERN
CT
FORNIA

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5

ETTE FELAR
RCA et al.,
YVE

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Plaintiff,

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C
Case No.: 11
1-CV-05719 YGR
T ENTATIVE ORDER ON MOTIONS TO DISMISS

vs.
ROB
BERT J. BIRG
GENEAU et al.,
a

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Defe
endant(s).

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United States District Court
Northern District of California

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD , PLEASE TA NOTICE OF THE FOLLOWING
A
S
S
D
AKE
E

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TEN
NTATIVE RUL
LING ON THE MOTIONS TO DISMISS SC
O
CHEDULED FO HEARING ON FEBRUA
OR
G
ARY 26, 2013
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AT 2:00 P.M.
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The Cou has review the parties’ papers a is incline to partiall grant the motions to
urt
wed
and
ed
ly

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dism filed by the Alamed County Sh
miss
y
da
heriff’s Offic Defendan (Dkt. No. 50) and the University
ce
nts
.
e

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of California Po
C
olice Departm Defend
ment
dants (Dkt. N 58) (coll
No.
lectively “Po
olice Officer
r

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Defe
fendants”) an grant the motion filed by the UC A
nd
m
d
Administrat (Dkt. No 57). This ruling would
tors
o.

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dism with lea to amend all claims against all de
miss
ave
d
a
efendants ex
xcept for Cou IV for ex
unt
xcessive

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forc against the Police Offi Defenda Chavez, Garcia, Kin Obichere and Saman Lachler
ce
e
ficer
ants
,
ng,
e,
ntha
r.

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This is a tentativ ruling and the parties still have an opportunity to present oral argume
s
ve
d
n
y
ent.

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Alte
ernatively, if the parties JOINTLY stip
f
pulate in wr
riting to entry of the tentative ruling, the hearing
y

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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

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Offi Defenda and GRA
icer
ants
ANTS the Mo
otion of the U Adminis
UC
strators, each with LEAV TO
h
VE

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AME as follo
END
ows:

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I.

INTROD
DUCTION

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Plaintiff bring this civil rights action agains administra
fs
c
a
st
ators of the U
University of California,
f

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Berk
keley (“UC Berkeley”) and police of
B
a
fficers from the Univers of Califo
sity
ornia Police Department

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(“UCPD”) and Alameda County Sheriff’s Office (“ACSO”) for injuries suffered when UC Berkeley

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administrators allegedly ordered the police to brutally and violently break up a peaceful protest that

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took place on the UC Berkeley campus on November 9, 2011.
Plaintiffs’ First Amended Complaint (“FAC”), which spans 499 paragraphs and 65 pages,

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alleges six claims on behalf of twenty nine individual plaintiffs against seventeen individual

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defendants. Despite its length, the FAC fails significantly to identify which claim is brought on

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behalf of whom or against whom, an issue which must be rectified.1 The six claims are for: (1)

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Police Force in Violation of the First Amendment of the United States Constitution; (2) Abuse of

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Process in Violation of the First and Fourth Amendments of the United States Constitution; (3)

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Retaliatory Prosecution in Violation of the First and Fourth Amendments of the United States

11

United States District Court
Northern District of California

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Constitution; (4) Excessive Force in Violation of the Fourth Amendment of the United States

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Constitution; (5) False Arrest (“Seizure”) in Violation of the Fourth Amendment of the United

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States Constitution; and (6) Conspiracy to Violate Plaintiffs’ First, Fourth, and Fourteenth

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Amendment Rights.
The Defendants have filed three motions to dismiss Plaintiffs’ Amended Complaint. Their

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arguments fall into several broad categories: (1) the Plaintiffs’ allegations do not allege the

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violation of a clearly established right, (2) do not allege sufficient (or any) personal involvement of

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the Defendants in the challenged actions, (3) are too conclusory to overcome a qualified immunity

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defense, and (4) the Defendants were not the legal cause of Plaintiffs’ damages, if any. Permeating

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these arguments is a dispute of the Plaintiffs’ characterization of the protest and the Defendants’

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response to that protest, including whether Defendants used excessive force, whether Defendants’

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actions were a result of objections to Plaintiffs’ message, and whether Plaintiffs were harmed.

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Having carefully considered the papers submitted and the Amended Complaint, for the

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reasons set forth below, the Court hereby DENIES IN PART and GRANTS IN PART the motions of the

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police officer defendants and GRANTS the Motion of the UC Administrators. For those police

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officers whom Plaintiffs specifically identify as having used force against them, Plaintiffs have

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Plaintiffs have since clarified that only Count IV, alleging Excessive Force, is asserted against the police
officers.

2

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state a claim fo excessive force. For those police officers not alleged to h
ed
or
t
have used an force
ny

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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

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alleg the UC Administrat cannot be held indiv
ged,
tors
b
vidually liab for the all
ble
legedly unco
onstitutional

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acts of police of
fficers based solely on th position within the c
d
heir
campus adm
ministration o conclusory
or
y

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gations that they planned and coordi
d
inated a poli assault on the protest
ice
n
tors. LEAVE TO AMEND
E
alleg

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is GRANTED.

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II.

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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

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United States District Court
Northern District of California

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the integrity of the University as a publi institution against fee hikes and the privatizat
i
t
ic
n,
e
tion of publi
ic

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educ
cation, and for increasin black, Latina/o, and N
f
ng
Native Ameri
ican student enrollment.” (FAC ¶ 1.
.)

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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

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been erected. In the course of clearing the tents and protestors, the police v
n
n
t
d
viciously bea the
at

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prot
testors. Whi brutalizin the protestors, the pol officers indiscrimina
ile
ng
lice
ately, and wi
ithout

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prob
bable cause, falsely arres and imp
sted
prisoned ove forty prote
er
estors, includ
ding five of t Plaintiffs
the
s

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in th action. Plaintiffs alle that “Chancellor Birg
his
P
ege
geneau and other admin
nistrators of U Berkeley
UC
y

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coor
rdinated and conducted a planned, violent attack against these peaceful p
d
v
k
protesters be
ecause they

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oppo
osed the pro
otesters’ defe
ense of affordable, public education and their ass
sociation with the
c

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popu ‘Occupy Wall Stree movemen (Id. ¶ 2. )
ular
y
et’
nt.”

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A.

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In the af
fternoon of November 9, 2011, prote
N
,
esters erected an “Occup
d
py”-style enc
campment on
n

“OCCUPY” CAL
“

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the lawn near Sp
l
proul Hall on the UC Be
n
erkeley camp
pus. (Id. ¶¶ 76-77.) Due to the UC
e

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Adm
ministrators’ past toleran response to protestors setting up te on camp the prot
nt
o
ents
pus,
testors

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assu
umed they would be able to set up pr
w
e
rotest tents w
without incid
dent. Unlike previous pr
e
rotests,

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however, Plaintiffs allege that the UC Administrators disagreed with the protestors’ message and

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sought to “chill” their speech.2

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1.

Afternoon Raid

That afternoon, police officers raided the encampment to take down the tents. Dozens of

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police officers, including officers from UCPD and ACSO, showed up in riot gear. Protestors

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gathered around the tents, with some linking arms. “At about 3:30 pm, the police forcefully

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attacked students, pushing with the broad side of their batons, jabbing students with the ends of their

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batons in students’ stomachs, chests, ribs, legs, backs, and groins, using overhand strikes and

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headlocks, and yanking people out by their hair and arresting them.” (Id. ¶ 82.) The police cleared

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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

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area. (Id. ¶ 88.) “At 5:36 pm, defendant Chancellor Birgeneau, in an email to defendant [UC

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Administrators] … stated: ‘It is critical that we do not back down on our no encampment policy.’”

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(Id. ¶ 89.) “At or around 6:15 pm, Vice Chancellor of Student Affairs Harry LeGrande … read a

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statement [to the protestors], declaring that the administration would allow protesters to stay on

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Sproul Plaza, but they could not have protest tents.” (Id. ¶ 90.) By 9:00 pm, hundreds of protestors

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had gathered in Sproul Plaza. (Id. ¶ 92.) Vice Chancellor LeGrande announced that protesters had

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until 10:00 pm to remove the tents before the police would show up, give a ten-minute warning, and

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remove the tents by force. (Id. ¶ 147.)

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2.

Evening raid

At 9:30 pm, the police showed up in riot gear and raided the encampment. (Id. ¶ 148.)

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Protestors linked arms to face the police. As in the afternoon, the officers used batons, but this time

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with even more brutality, pushing and jabbing people and using overhand strikes on protestors’

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heads. (Id. ¶ 95.) The officers grabbed and indiscriminately pulled some of the protestors out of the

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lines and placed them under arrest. (Id. ¶ 98.) Once the officers gained access to the tents, the

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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.

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officers dismantled the tents. (Id. ¶ 99.) However, even after clearing the encampment, the police

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continued to beat the protestors. (Id. ¶ 101.) During this time, other students hurried to Sproul Plaza

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from across campus to defend the protesters. (Id. ¶ 103.) Over two thousand people amassed before

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police ceased their attack on the protestors. (Id.)

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B.

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The Plaintiffs in this action were among the protestors who participated in the Occupy Cal

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protest and consist primarily of current and former students of UC Berkeley, as well as organizers

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with the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for

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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,

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United States District Court
Northern District of California

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Julie Klinger, Anthony Morreale, Sachinthya Wagaarachchi, and Taro Yamaguchi-Phillips, were

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among those arrested on November 9, 2011, which they allege was false arrest.3 (Id. ¶¶ 488, 493.)

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Another five Plaintiffs, Yvette Felarca, Joshua Anderson, Ashley Pinkerton, Erick Uribe, and Justin

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Tombolesi, were not arrested on November 9, 2011, but subsequently were charged with

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misdemeanors for their actions in connection with the Occupy Cal protest, which Plaintiffs allege

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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

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allegedly unconstitutional conduct but also on the UC Administrators, whom Plaintiffs allege

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disagreed with Plaintiffs’ message and directed the officers to break up the protest by using

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excessive force. The Defendants are: (1) administrators of UC Berkeley, including former

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3

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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.)

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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.

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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

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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

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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)

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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

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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

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com
mplaint has al
lleged—but it has not ‘show[n]’—‘t
that the plead is entitle to relief.’” See Iqbal,
der
ed
”

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supr 556 U.S. at 679.
ra,

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IV.

Title 42, Section 198 of the Un
,
83
nited States C
Code (“Secti 1983”)5 p
ion
provides a cause of

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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

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5

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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

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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

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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.

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A.

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Plaintiffs have clarified that Count IV for Excessive Force is the only claim brought against

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the Police Officer Defendants. The Police Officer Defendants argue that the Plaintiffs fail to allege

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facts sufficient to support a claim that any of them used excessive force against any Plaintiff. Thus,

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the Police Officer Defendants assert that the FAC does not allege any of them deprived any Plaintiff

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of a federally protected right.

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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

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actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without

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regard to their underlying intent or motivation.” Id. at 397. The relevant facts and circumstances

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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

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27
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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

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but alleging that a police officer used overhand swings to strike the plaintiff is not. Plaintiffs “plead[

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] factual content that allows the court to draw the reasonable inference that the defendant[s are]

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liable for the misconduct alleged.” Id. (citing Twombly, supra, 550 U.S. at 556). Therefore, as to

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ACSO Officers Chavez, Garcia, King and Obichere, the Plaintiffs have pled “sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (citing Twombly,

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supra, 550 U.S. at 570).

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Based on the foregoing analysis, the Court DENIES the ACSO Defendants’ Motion to

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Dismiss to the extent it seeks dismissal of Count IV for Excessive Force against Officers Chavez,

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Garcia, King and Obichere.

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3.

Remaining Officers.

As to the remaining Police Officer Defendants, UCPD Detective Florendo, UCPD Officer

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Hernandez, and ACSO Chief Ahern, Plaintiffs do not specifically allege any of them used force

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against the Plaintiffs. Generalized allegations that “the named defendant officers and the defendants

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Does 1-100 used excessive force” and “[t]he defendant officers attacked people,” (see id. ¶¶ 484-

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85), fail to state claims for excessive force against Detective Florendo or Officer Hernandez.

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Additionally, Plaintiffs do not object to the dismissal of all claims brought against Gregory Ahern,

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Chief of the ACSO, against whom no misconduct is alleged.

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10

Therefore, as to Detective Florendo, Officer Hernandez, and Chief Ahern, only, the Court

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2

GRANTS the Motion to Dismiss the Fourth Amendment Excessive Force claim.

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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

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5

Officers Defendants’ Motions to Dismiss Count IV for Excessive Force. The Court DENIES the

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Motions to Dismiss Count IV as to ACSO Officers Chavez, Garcia, King, Obichere and UCPD

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Officer Samantha Lachler. The Court GRANTS the Motion to Dismiss Count IV as to UCPD

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Detective Florendo, UCPD Officer Hernandez and ACSO Chief Ahern. The Court DISMISSES

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Count IV against Detective Florendo and Officer Hernandez WITH LEAVE TO AMEND and

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DISMISSES Count IV against Chief Ahern WITH LEAVE TO FILE A MOTION TO AMEND.

United States District Court
Northern District of California

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B.

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Defendant UC Administrators move to dismiss the Section 1983 claims against them,

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arguing that the FAC lacks the requisite factual detail necessary to hold them individually liable for

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the allegedly unconstitutional conduct of the Defendant Police Officers. The UC Administrators

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argue that the FAC is devoid of factual allegations that would establish that any caused Plaintiffs’

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alleged injuries so as to hold any of them individually liable for the Plaintiffs’ injuries. Plaintiffs

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argue that the UC Administrators are liable for the police officers’ unconstitutional acts because as

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supervisors they set in motion, or knew of but failed to stop, a series of acts by the police officers

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that caused Plaintiffs’ constitutional injuries.

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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

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their subordinates under a respondeat superior7 theory of liability. See Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989). Rather, “each Government official, his or her title notwithstanding, is

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only liable for his or her own misconduct.” Iqbal, supra, 556 U.S. at 677. Because vicarious

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liability is inapplicable to Section 1983 suits, Plaintiffs must plead that each defendant, through his

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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

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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.

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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

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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.

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2.

Adequacy of Allegations Against the UC Administrator Defendants

The vast majority of Plaintiffs’ allegations against the UC Administrators lump all seven

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15

administrators together without differentiating their respective roles in the alleged wrongdoing. For

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the most part, Plaintiffs make generalized allegations that Chancellor Birgeneau and the other UC

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Administrators “planned, coordinated, and ordered the police attack and indiscriminate arrests of

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plaintiffs.” (FAC ¶ 495.) “These bare assertions, much like the pleading of conspiracy in Twombly,

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amount to nothing more than a ‘formulaic recitation of the elements’ of a constitutional [tort],”

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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

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these bare allegations may be “consistent with” a finding of liability against the other UC

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25
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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

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camp. (See FAC ¶¶ 89, 90, 105, 147). Chancellor Birgeneau emailed: “It is critical that we do not

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back down on our no encampment policy,” (id. ¶ 89), after which Vice Chancellor Le Grande

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announced to the protestors a plan to have police officers clear the encampment if the protestors did

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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

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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

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connect Chancellor Birgeneau and Vice Chancellor Le Grande to any unconstitutional acts.

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The remaining UC Administrators have administrative responsibilities regarding campus

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emergency procedures. Based upon the lone allegation that certain UC Administrators were

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members of the “Crisis Management Team” who were assigned responsibility for overseeing the

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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

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knew of but failed to stop, the injuries done to the plaintiffs.” (Opp’n to UC Defs.’ Mot. 17.) The

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Court will not infer critical facts not supported by allegations in the FAC.

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Based on the foregoing analysis, Plaintiffs fail to allege sufficient facts to hold all of the UC

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Administrators individually responsible for the allegedly unconstitutional conduct of the police in

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breaking up the protests on November 9, 2011.

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C.

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The foregoing analysis specifically addressed only one cause of action, Plaintiffs’ claim for

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Fourth Amendment Excessive Force (Count IV). Plaintiffs’ remaining claims were not addressed.

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Those claims are for First Amendment Retaliation (Count I); Abuse of Process (Count II);

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Retaliatory Prosecution (Count III); Fourth Amendment False Arrest (Count V); and Conspiracy to

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Violate Civil Rights (Count VI).

PLAINTIFFS’ REMAINING CLAIMS

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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

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ACS Officers Chavez, Ga
SO
arcia, King, Obichere, UC
O
CPD Detecti Florendo and UCPD Officers
ive
o,
D

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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

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Offi Defenda
icer
ants.
Addition
nally, Plainti have not addressed a of the De
iffs
t
any
efendants’ m
meritorious a
arguments fo
or

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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

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V.

CONCL
LUSION

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For the reasons set forth above, the Court ten
r
fo
t
ntatively OR
RDERS as follows:

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(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.

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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.

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6

Date: February 22, 2013

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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