Ford et al v. Contra Costa County et al

Filing 54

ORDER by Judge Hamilton granting 39 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 3/27/2013)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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KURT FORD, et al.,
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Plaintiffs,

No. C 12-5824 PJH

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v.
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ORDER GRANTING MOTION TO
DISMISS

CONTRA COSTA COUNTY, et al.,
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For the Northern District of California

United States District Court

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Defendants.
_______________________________/

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Defendants’ motion to dismiss plaintiffs’ second amended complaint came on for

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hearing before this court on March 27, 2013. Plaintiffs Kurt Ford and Judy Mena

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(“plaintiffs”) appeared through their counsel, Tiffany O’Connor. Defendants Contra Costa

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County, Jason Hoschouer, and Jason Haynes (“defendants”) appeared through their

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counsel, D. Cameron Baker. Having read the papers filed in conjunction with the motion

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and carefully considered the arguments and the relevant legal authority, and good cause

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appearing, the court hereby GRANTS defendants’ motion, for the reasons stated at the

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hearing, and summarized as follows.

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As to plaintiffs’ first cause of action (for assault and battery) defendants correctly

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argue (and plaintiffs concede) that plaintiffs impermissibly commingle their claims, depriving

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the defendants of notice as to which plaintiff is asserting this claim against which

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defendant(s). For that reason, plaintiffs’ first cause of action is DISMISSED with leave to

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amend.

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As to plaintiffs’ second cause of action (under sections 1983 and 1988), the plaintiffs

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again commingle their claims. Also, plaintiffs assert violations of their rights under both the

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Fourth Amendment and the Fourteenth Amendment, even though the Supreme Court has

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made clear that “all claims that law enforcement officers have used excessive force . . . in

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the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be

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analyzed under the Fourth Amendment,” and not under the Fourteenth Amendment.

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Graham v. Connor, 490 U.S. 386, 395 (1989). For that reason, plaintiffs’ claim under the

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Fourteenth Amendment is DISMISSED with prejudice. The remainder of plaintiffs’ second

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cause of action is DISMISSED with leave to amend, so that plaintiffs may correct the

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commingling of their claims.

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As to plaintiffs’ third cause of action (negligence), plaintiffs again commingle their
claims. For that reason, plaintiffs’ third cause of action is DISMISSED with leave to amend.

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For the Northern District of California

United States District Court

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As to plaintiffs’ fourth cause of action (negligent supervision and training), plaintiffs

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concede that plaintiff Mena has no claim against defendant Haynes for failure to supervise

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or train. Thus, plaintiff Mena’s claim is DISMISSED with prejudice. Plaintiff Ford’s claim is

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DISMISSED with leave to amend, so that he may allege additional facts regarding

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defendant Hoschouer’s alleged “propensities” to use excessive force, regarding defendant

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Haynes’s knowledge of those alleged propensities, and regarding defendant Haynes’s duty

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to train and supervise defendant Hoschouer.

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As to plaintiffs’ fifth cause of action (intentional infliction of emotional distress),

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plaintiffs again commingle their claims. The court further notes that the complaint alleges

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that plaintiffs “sought medical treatment for injuries,” but does not make clear that they

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sought or received treatment for emotional (as opposed to physical) injuries. For that

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reason, plaintiffs’ fifth cause of action is DISMISSED with leave to amend, so that plaintiffs

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can allege the specific emotional injuries suffered, and allege the specific treatment sought

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and/or received. Plaintiffs’ amended complaint shall also correct the commingling of their

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claims.

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As to plaintiffs’ sixth cause of action (under Cal. Civ. Code § 52.1), the court finds
that plaintiffs have not adequately alleged the specific rights with which defendants

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allegedly interfered. And to the extent that plaintiffs intend to assert a claim under § 52 as

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well, they have not alleged the class of persons listed in § 51 to which they belong. The

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sixth cause of action also commingles the plaintiffs’ claims. For those reasons, plaintiffs’

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sixth cause of action is DISMISSED with leave to amend.

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Plaintiffs shall have until April 24, 2013 to file a third amended complaint in

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accordance with this order. No new claims or parties may be added without leave of court

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or agreement of the parties. Defendants shall have until May 15, 2013 to answer or

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otherwise respond to the complaint.

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IT IS SO ORDERED.
Dated: March 27, 2013
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For the Northern District of California

United States District Court

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______________________________
PHYLLIS J. HAMILTON
United States District Judge

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