Ingram v. City of San Francisco Police Department et al

Filing 32

ORDER by Judge Claudia Wilken GRANTING ( 12 , 19 ) MOTIONS TO DISMISS. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 4/18/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BARRY G. INGRAM,

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No. C 13-0224 CW

Plaintiff,

ORDER GRANTING
MOTIONS TO DISMISS
(Docket Nos. 12 &
19)

v.
SAN FRANCISCO POLICE DEP’T, et
al.,
Defendants.
________________________________/

United States District Court
For the Northern District of California

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Plaintiff Barry G. Ingram, proceeding pro se, brings this
action against Defendant San Francisco Police Department (SFPD)
and three of its employees, Sgt. Frazer, Officer Jennifer
Fiorello, and Officer Khmarskiy.1

Plaintiff’s first amended complaint (1AC) for failure to state a
claim.

Defendants Frazer, Fiorello, and Khmarskiy (Individual

Defendants) move separately to dismiss for insufficient service of
process.

Plaintiff opposes both motions.

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The Court took the

motions under submission on the papers and now grants both
motions.
BACKGROUND

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Defendant SFPD moves to dismiss

The following facts are taken from Plaintiff’s 1AC.

During a

routine traffic stop on October 7, 2010, Individual Defendants
cited Plaintiff for driving with a suspended license and impounded
his 1990 Ford Bronco.
:27, :15-:16.

Docket No. 1, Ex. A, 1AC at 2:11-:12, :26-

Plaintiff subsequently obtained DMV records showing

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The complaint does not include first names for Officers Frazer
and Khmarskiy.

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that his driver’s license had been restored in May 2010, five

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months before he received the citation.

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light of this information, SFPD dismissed the citation in May

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2011.

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vehicle.

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City of San Francisco later compensated him for the truck, he does

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not specify how much compensation he ultimately received.

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2:16-:17.

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“justly compensated” for the loss of his vehicle.

Id. at 2:15-:16.

Id. at 2:13-:14.

In

It did not, however, return Plaintiff’s

Id. at 3:3-:4.

Although Plaintiff acknowledges that the

Id. at

Nevertheless, he now asserts that he has not been
Id. at 3:3-:4

United States District Court
For the Northern District of California

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Plaintiff’s 1AC alleges that SFPD’s impoundment of his

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vehicle has caused him severe “mental anguish and emotional

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distress.”

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federal claims and seeks more than one hundred million dollars in

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personal injury and punitive damages.

Id. at 3:5-:6.

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He brings a variety of state and

Id. at 3:13-:16.

LEGAL STANDARDS
I.

Failure to State a Claim
A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

Fed. R.

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 246-47 (9th Cir. 1990).

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amendment would be futile, the court examines whether the

In determining whether

United States District Court
For the Northern District of California

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complaint could be amended to cure the defect requiring dismissal

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“without contradicting any of the allegations of [the] original

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complaint.”

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Cir. 1990).

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II.

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Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

Insufficient Service of Process
A federal court lacks personal jurisdiction over a defendant

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if service of process is insufficient.

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Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).

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the action without prejudice pursuant to Rule 12(b)(5).

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service is challenged, plaintiffs bear the burden of establishing

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that service was valid under Rule 4.”

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798, 801 (9th Cir. 2004) (citing 4A Charles A. Wright & Arthur R.

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Miller, Federal Practice and Procedure § 1083 (3d ed. 2002 & Supp.

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2003)).

Omni Capital Int’l v.
A court may dismiss
“Once

Brockmeyer v. May, 383 F.3d

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“So long as a party receives sufficient notice of the

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complaint, Rule 4 is to be ‘liberally construed’ to uphold

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service.”

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1132, 1135 (9th Cir. 2009) (quoting Chan v. Soc’y Expeditions,

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Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)).

Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d

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However, “neither

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actual notice nor simply naming the defendant in the complaint

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will provide personal jurisdiction absent ‘substantial compliance

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with Rule 4.’”

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Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986).

Federal Rule of Civil Procedure 4(c)(2) provides, “Any person

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who is at least 18 years old and not a party may serve a summons

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and complaint.”

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of the summons and of the complaint to the individual personally;

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(B) leaving a copy of each at the individual’s dwelling or usual

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place of abode with someone of suitable age and discretion who

It may be carried out by “(A) delivering a copy

United States District Court
For the Northern District of California

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resides there; or (C) delivering a copy of each to an agent

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authorized by appointment or by law to receive service of

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process.”

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authorize service by mail.

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manner allowed by state law.

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Fed. R. Civ. P. 4(e)(2).

Rule 4(e)(2) does not

Service may also be carried out in any
Fed. R. Civ. P. 4(e)(1).
DISCUSSION

I.

Failure to State a Claim
Plaintiff appears to bring claims under 42 U.S.C. §§ 1981 and

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1983; article 1, section 7 of the California Constitution; and

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sections 43 and 51 of the California Civil Code.

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set forth below, each of these claims must be dismissed.2

For the reasons

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Individual Defendants have not joined SFPD’s motion to dismiss
under Rule 12(b)(6) nor have they moved separately to dismiss on this
basis. However, because most of SFPD’s arguments apply with equal force
to Individual Defendants, the Court dismisses the claims against them
for failure to state a claim, as well. See Silverton v. Department of
Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (“A District Court may
properly on its own motion dismiss an action as to defendants who have
not moved to dismiss where such defendants are in a position similar to
that of moving defendants or where claims against such defendants are
integrally related.”).

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A.

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Title 42 U.S.C. § 1981 provides, in relevant part: “All

§ 1981 Claim

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persons in the United States shall have the same right in every

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State and Territory to make and enforce contracts.”

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§ 1981(a).

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refers to “the making, performance, modification, and termination

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of contracts, and the enjoyment of all benefits, privileges,

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terms, and conditions of the contractual relationship.”

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§ 1981(b).

United States District Court
For the Northern District of California

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42 U.S.C.

To “make and enforce contracts,” in this context,

Id.

Because Plaintiff has not alleged the existence of any

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contract with SFPD or Individual Defendants here, he has failed to

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state a claim under § 1981.

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officers owe a general duty to the public that “essentially

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establishes a binding contractual relation” with him, Opp. SFPD’s

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Mot. Dismiss 2, does not provide a valid basis for his § 1981

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claim.

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Cal.) (dismissing § 1981 claims against police officers because

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the plaintiff failed to allege the existence of any contract with

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the officers).

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existence of a binding contract, he has not alleged that

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Defendants’ conduct was racially motivated.

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Business, Inc. v. Symington, 51 F.3d 1480, 1487 (9th Cir. 1995)

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(“In order to withstand a motion to dismiss for failure to state a

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claim, a § 1981 cause of action need only allege ‘that plaintiff

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suffered discrimination . . . on the basis of race.’” (citations

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omitted; alterations in original)).

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dismissed.

Plaintiff’s assertion that police

See Castenada v. City of Napa, 1996 WL 241818, at *2 (N.D.

Furthermore, even if Plaintiff had plead the

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Parks School of

This claim must therefore be

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Because Plaintiff concedes in his sworn opposition that “no

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contract exists” between him and Defendants, Plaintiff cannot cure

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this claim by amending his complaint.

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Accordingly, his § 1981 claim is dismissed with prejudice.

Opp. SFPD’s Mot. Dismiss 2.

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B.

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Municipalities cannot be held vicariously liable under § 1983

§ 1983 Claim

for the actions of their employees.

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Soc. Servs., 436 U.S. 658, 691 (1978).

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execution of a government’s policy or custom, whether made by its

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United States District Court
For the Northern District of California

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lawmakers or by those whose edicts or acts may fairly be said to

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represent official policy, inflicts the injury that the government

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as an entity is responsible under § 1983.”

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Monell v. N.Y. City Dep’t of
“Instead, it is when

Id. at 694.

Here, Plaintiff has failed to state a § 1983 claim against

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SFPD because he has not alleged that his car was impounded

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pursuant to an official policy or custom.

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specify which of his federal rights Defendants allegedly violated.

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Albright v. Oliver, 510 U.S. 266, 269 (1994) (“The first step in

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any [§ 1983] claim is to identify the specific constitutional

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right allegedly infringed.”).

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to state a valid § 1983 claim.

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He has also failed to

Accordingly, Plaintiff has failed

Plaintiff is granted leave to amend his § 1983 claim if he

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can identify a specific federal right that Individual Defendants

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violated by seizing his vehicle.

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§ 1983 claim against SFPD, but only if he can truthfully allege

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facts showing that his vehicle was seized pursuant to a specific

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unlawful policy or custom.

Plaintiff may also amend his

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C.

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Article 1, section 7 of the California Constitution provides

Claims under the California Constitution

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that a “person may not be deprived of life, liberty, or property

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without due process of law or denied equal protection of the law.”

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Although Plaintiff invokes this language in his 1AC, he does not

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explain how his rights to due process or equal protection were

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actually infringed by Defendants.

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under this provision of the State Constitution.

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Thus, he has not stated a claim

Even if Plaintiff had clearly identified a due process or

United States District Court
For the Northern District of California

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equal protection violation here, he still could not recover the

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monetary damages he seeks.

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that plaintiffs do not enjoy “a right to monetary relief” under

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article 1, section 7 of the California Constitution.

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Aquafarm, Inc. v. State Dep’t Health Services, 83 Cal. App. 4th

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809, 815-23 (2000) (citing Gates v. Superior Court, 32 Cal. App.

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4th 481, 516-24 (1995)).

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monetary relief here, his article 1, section 7 claim must be

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dismissed on this basis, as well.

California courts have repeatedly held

Carlsbad

Because Plaintiff seeks exclusively

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Plaintiff is granted leave to amend this claim if he can

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truthfully allege specific facts showing that Defendants committed

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a due process or equal protection violation that supports a claim

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for declaratory or injunctive relief.

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D.

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Under section 43 of the Civil Code, a plaintiff may bring a

Claims under the California Civil Code

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claim to assert his or her “right of protection from bodily

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restraint or harm, from personal insult, from defamation, and from

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injury to his personal relations.”

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codifies causes of action for various common law torts, such as
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This provision effectively

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assault and battery.

Rhodes v. Placer County, 2011 WL 1302264, at

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*12 n.11 (E.D. Cal.).

Because Plaintiff has not alleged any facts

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to support this claim, it must be dismissed.

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So, too, must Plaintiff’s claim under section 51 of the Civil

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Code.

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discriminating against patrons on the basis of “sex, race, color,

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religion, ancestry, national origin, disability, medical

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condition, genetic information, marital status, or sexual

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orientation.”

Section 51 prohibits “business establishments” from

Cal. Civ. Code § 51.

Plaintiff here has not plead

United States District Court
For the Northern District of California

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that Defendants are part of any “business establishment” nor that

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they discriminated against him on some impermissible basis.

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has therefore failed to state a claim under this provision, as

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well.

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He

Plaintiff is granted leave to amend his section 43 claim if

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he can truthfully allege sufficient facts to show that the seizure

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of his vehicle caused him bodily harm, personal insult, or injury

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to his personal relations.

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allege that any Defendant in this case is a “business

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establishment,” his section 51 claim is dismissed with prejudice.

Because Plaintiff cannot truthfully

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E.

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In addition to the above claims, Plaintiff seeks punitive

Punitive Damages

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damages under section 3294 of the Civil Code.

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bars Plaintiff from recovering damages from SFPD under this

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provision on any of his state law claims.

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(“Notwithstanding any other provision of law, a public entity is

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not liable for damages awarded under Section 3294 of the Civil

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Code or other damages imposed primarily for the sake of example

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and by way of punishing the defendant.”).
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State law expressly

Cal. Gov’t Code § 818

He is similarly barred

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from recovering punitive damages from SFPD on his federal claims.

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City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)

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(“[B]ecause that immunity is compatible with both the purposes of

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§ 1983 and general principles of public policy, we hold that a

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municipality is immune from punitive damages under 42 U.S.C.

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§ 1983.”).

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Although Plaintiff is not barred from recovering punitive
damages from Individual Defendants on his § 1983 claims, to do so

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he must ultimately establish that the officers’ conduct “involves

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United States District Court
For the Northern District of California

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reckless or callous indifference to the federally protected rights

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of others.”

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Plaintiff wishes to pursue punitive damages against Individual

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Defendants in a future pleading, he must truthfully allege facts

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showing that they acted with reckless or callous indifference to

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his federally protected rights.

Smith v. Wade, 461 U.S. 30, 56 (1983).

Thus, if

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F.

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Because all of Plaintiff’s claims must be dismissed, the

Qualified Immunity

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Court need not address Defendants’ qualified immunity defense.

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any event, Plaintiff has not plead sufficient facts here to

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determine whether Defendants’ conduct violates “clearly

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established statutory or constitutional rights of which a

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reasonable person would have known.”

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U.S. 800, 818 (1982).

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II.

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In

Harlow v. Fitzgerald, 457

Insufficient Service
In addition to failing to state a claim against Individual

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Defendants, Plaintiff has failed to serve them properly with the

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summons and complaint in this action.

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attempted to effect service on Individual Defendants by delivering
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Plaintiff contends that he

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the summons and complaint to an assistant in the Mayor’s office.

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Because that assistant was not authorized to accept service on

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behalf of Individual Defendants, Plaintiff’s attempt to serve

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Individual Defendants is insufficient and his claims against them

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must be dismissed on this ground, as well.

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CONCLUSION

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For the reasons set forth above, SFPD’s motion to dismiss

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(Docket No. 12) and Individual Defendants’ motion to dismiss

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(Docket No. 19) are both GRANTED.

Plaintiff’s claims under 42

United States District Court
For the Northern District of California

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U.S.C. § 1981 and section 51 of the California Civil Code are

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dismissed with prejudice.

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pursuant to the instructions above, by filing a second amended

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complaint within twenty-one days of this order.

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Plaintiff may amend his other claims,

The second amended complaint and summons must be served on

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all Defendants.

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documents properly, Plaintiff should consult the Court’s guide for

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pro se litigants, Representing Yourself in Federal Court: A

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Handbook for Pro Se Litigants, which is available free of charge

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from the Clerk’s office and may be downloaded from the Court’s

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website at http://www.cand.uscourts.gov/prosehandbook.

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For rules and instructions on how to serve these

IT IS SO ORDERED.

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Dated:

4/18/2013

CLAUDIA WILKEN
United States District Judge

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