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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 BARRY G. INGRAM, 5 6 7 8 9 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 10 11 12 13 14 15 16 17 18 19 20 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. 23 24 25 26 The Court took the motions under submission on the papers and now grants both motions. BACKGROUND 21 22 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 27 1 28 The complaint does not include first names for Officers Frazer and Khmarskiy. 1 that his driver’s license had been restored in May 2010, five 2 months before he received the citation. 3 light of this information, SFPD dismissed the citation in May 4 2011. 5 vehicle. 6 City of San Francisco later compensated him for the truck, he does 7 not specify how much compensation he ultimately received. 8 2:16-:17. 9 “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 10 Plaintiff’s 1AC alleges that SFPD’s impoundment of his 11 vehicle has caused him severe “mental anguish and emotional 12 distress.” 13 federal claims and seeks more than one hundred million dollars in 14 personal injury and punitive damages. Id. at 3:5-:6. 15 16 17 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 18 claim showing that the pleader is entitled to relief.” 19 Civ. P. 8(a). 20 state a claim, dismissal is appropriate only when the complaint 21 does not give the defendant fair notice of a legally cognizable 22 claim and the grounds on which it rests. 23 Twombly, 550 U.S. 544, 555 (2007). 24 complaint is sufficient to state a claim, the court will take all 25 material allegations as true and construe them in the light most 26 favorable to the plaintiff. 27 896, 898 (9th Cir. 1986). 28 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 2 1 cause of action, supported by mere conclusory statements,” are not 2 taken as true. 3 (citing Twombly, 550 U.S. at 555). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 4 When granting a motion to dismiss, the court is generally 5 required to grant the plaintiff leave to amend, even if no request 6 to amend the pleading was made, unless amendment would be futile. 7 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 8 F.2d 242, 246-47 (9th Cir. 1990). 9 amendment would be futile, the court examines whether the In determining whether United States District Court For the Northern District of California 10 complaint could be amended to cure the defect requiring dismissal 11 “without contradicting any of the allegations of [the] original 12 complaint.” 13 Cir. 1990). 14 II. 15 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Insufficient Service of Process A federal court lacks personal jurisdiction over a defendant 16 if service of process is insufficient. 17 Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). 18 the action without prejudice pursuant to Rule 12(b)(5). 19 service is challenged, plaintiffs bear the burden of establishing 20 that service was valid under Rule 4.” 21 798, 801 (9th Cir. 2004) (citing 4A Charles A. Wright & Arthur R. 22 Miller, Federal Practice and Procedure § 1083 (3d ed. 2002 & Supp. 23 2003)). Omni Capital Int’l v. A court may dismiss “Once Brockmeyer v. May, 383 F.3d 24 “So long as a party receives sufficient notice of the 25 complaint, Rule 4 is to be ‘liberally construed’ to uphold 26 service.” 27 1132, 1135 (9th Cir. 2009) (quoting Chan v. Soc’y Expeditions, 28 Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)). Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 3 However, “neither 1 actual notice nor simply naming the defendant in the complaint 2 will provide personal jurisdiction absent ‘substantial compliance 3 with Rule 4.’” 4 Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). Federal Rule of Civil Procedure 4(c)(2) provides, “Any person 5 who is at least 18 years old and not a party may serve a summons 6 and complaint.” 7 of the summons and of the complaint to the individual personally; 8 (B) leaving a copy of each at the individual’s dwelling or usual 9 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 10 resides there; or (C) delivering a copy of each to an agent 11 authorized by appointment or by law to receive service of 12 process.” 13 authorize service by mail. 14 manner allowed by state law. 15 16 17 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 18 1983; article 1, section 7 of the California Constitution; and 19 sections 43 and 51 of the California Civil Code. 20 set forth below, each of these claims must be dismissed.2 For the reasons 21 22 23 2 24 25 26 27 28 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.”). 4 1 A. 2 Title 42 U.S.C. § 1981 provides, in relevant part: “All § 1981 Claim 3 persons in the United States shall have the same right in every 4 State and Territory to make and enforce contracts.” 5 § 1981(a). 6 refers to “the making, performance, modification, and termination 7 of contracts, and the enjoyment of all benefits, privileges, 8 terms, and conditions of the contractual relationship.” 9 § 1981(b). United States District Court For the Northern District of California 10 42 U.S.C. To “make and enforce contracts,” in this context, Id. Because Plaintiff has not alleged the existence of any 11 contract with SFPD or Individual Defendants here, he has failed to 12 state a claim under § 1981. 13 officers owe a general duty to the public that “essentially 14 establishes a binding contractual relation” with him, Opp. SFPD’s 15 Mot. Dismiss 2, does not provide a valid basis for his § 1981 16 claim. 17 Cal.) (dismissing § 1981 claims against police officers because 18 the plaintiff failed to allege the existence of any contract with 19 the officers). 20 existence of a binding contract, he has not alleged that 21 Defendants’ conduct was racially motivated. 22 Business, Inc. v. Symington, 51 F.3d 1480, 1487 (9th Cir. 1995) 23 (“In order to withstand a motion to dismiss for failure to state a 24 claim, a § 1981 cause of action need only allege ‘that plaintiff 25 suffered discrimination . . . on the basis of race.’” (citations 26 omitted; alterations in original)). 27 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 28 5 Parks School of This claim must therefore be 1 Because Plaintiff concedes in his sworn opposition that “no 2 contract exists” between him and Defendants, Plaintiff cannot cure 3 this claim by amending his complaint. 4 Accordingly, his § 1981 claim is dismissed with prejudice. Opp. SFPD’s Mot. Dismiss 2. 5 B. 6 Municipalities cannot be held vicariously liable under § 1983 § 1983 Claim for the actions of their employees. 8 Soc. Servs., 436 U.S. 658, 691 (1978). 9 execution of a government’s policy or custom, whether made by its 10 United States District Court For the Northern District of California 7 lawmakers or by those whose edicts or acts may fairly be said to 11 represent official policy, inflicts the injury that the government 12 as an entity is responsible under § 1983.” 13 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 14 SFPD because he has not alleged that his car was impounded 15 pursuant to an official policy or custom. 16 specify which of his federal rights Defendants allegedly violated. 17 Albright v. Oliver, 510 U.S. 266, 269 (1994) (“The first step in 18 any [§ 1983] claim is to identify the specific constitutional 19 right allegedly infringed.”). 20 to state a valid § 1983 claim. 21 He has also failed to Accordingly, Plaintiff has failed Plaintiff is granted leave to amend his § 1983 claim if he 22 can identify a specific federal right that Individual Defendants 23 violated by seizing his vehicle. 24 § 1983 claim against SFPD, but only if he can truthfully allege 25 facts showing that his vehicle was seized pursuant to a specific 26 unlawful policy or custom. Plaintiff may also amend his 27 28 6 1 C. 2 Article 1, section 7 of the California Constitution provides Claims under the California Constitution 3 that a “person may not be deprived of life, liberty, or property 4 without due process of law or denied equal protection of the law.” 5 Although Plaintiff invokes this language in his 1AC, he does not 6 explain how his rights to due process or equal protection were 7 actually infringed by Defendants. 8 under this provision of the State Constitution. 9 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 10 equal protection violation here, he still could not recover the 11 monetary damages he seeks. 12 that plaintiffs do not enjoy “a right to monetary relief” under 13 article 1, section 7 of the California Constitution. 14 Aquafarm, Inc. v. State Dep’t Health Services, 83 Cal. App. 4th 15 809, 815-23 (2000) (citing Gates v. Superior Court, 32 Cal. App. 16 4th 481, 516-24 (1995)). 17 monetary relief here, his article 1, section 7 claim must be 18 dismissed on this basis, as well. California courts have repeatedly held Carlsbad Because Plaintiff seeks exclusively 19 Plaintiff is granted leave to amend this claim if he can 20 truthfully allege specific facts showing that Defendants committed 21 a due process or equal protection violation that supports a claim 22 for declaratory or injunctive relief. 23 D. 24 Under section 43 of the Civil Code, a plaintiff may bring a Claims under the California Civil Code 25 claim to assert his or her “right of protection from bodily 26 restraint or harm, from personal insult, from defamation, and from 27 injury to his personal relations.” 28 codifies causes of action for various common law torts, such as 7 This provision effectively 1 assault and battery. Rhodes v. Placer County, 2011 WL 1302264, at 2 *12 n.11 (E.D. Cal.). Because Plaintiff has not alleged any facts 3 to support this claim, it must be dismissed. 4 So, too, must Plaintiff’s claim under section 51 of the Civil 5 Code. 6 discriminating against patrons on the basis of “sex, race, color, 7 religion, ancestry, national origin, disability, medical 8 condition, genetic information, marital status, or sexual 9 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 10 that Defendants are part of any “business establishment” nor that 11 they discriminated against him on some impermissible basis. 12 has therefore failed to state a claim under this provision, as 13 well. 14 He Plaintiff is granted leave to amend his section 43 claim if 15 he can truthfully allege sufficient facts to show that the seizure 16 of his vehicle caused him bodily harm, personal insult, or injury 17 to his personal relations. 18 allege that any Defendant in this case is a “business 19 establishment,” his section 51 claim is dismissed with prejudice. Because Plaintiff cannot truthfully 20 E. 21 In addition to the above claims, Plaintiff seeks punitive Punitive Damages 22 damages under section 3294 of the Civil Code. 23 bars Plaintiff from recovering damages from SFPD under this 24 provision on any of his state law claims. 25 (“Notwithstanding any other provision of law, a public entity is 26 not liable for damages awarded under Section 3294 of the Civil 27 Code or other damages imposed primarily for the sake of example 28 and by way of punishing the defendant.”). 8 State law expressly Cal. Gov’t Code § 818 He is similarly barred 1 from recovering punitive damages from SFPD on his federal claims. 2 City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) 3 (“[B]ecause that immunity is compatible with both the purposes of 4 § 1983 and general principles of public policy, we hold that a 5 municipality is immune from punitive damages under 42 U.S.C. 6 § 1983.”). 7 Although Plaintiff is not barred from recovering punitive damages from Individual Defendants on his § 1983 claims, to do so 9 he must ultimately establish that the officers’ conduct “involves 10 United States District Court For the Northern District of California 8 reckless or callous indifference to the federally protected rights 11 of others.” 12 Plaintiff wishes to pursue punitive damages against Individual 13 Defendants in a future pleading, he must truthfully allege facts 14 showing that they acted with reckless or callous indifference to 15 his federally protected rights. Smith v. Wade, 461 U.S. 30, 56 (1983). Thus, if 16 F. 17 Because all of Plaintiff’s claims must be dismissed, the Qualified Immunity 18 Court need not address Defendants’ qualified immunity defense. 19 any event, Plaintiff has not plead sufficient facts here to 20 determine whether Defendants’ conduct violates “clearly 21 established statutory or constitutional rights of which a 22 reasonable person would have known.” 23 U.S. 800, 818 (1982). 24 II. 25 In Harlow v. Fitzgerald, 457 Insufficient Service In addition to failing to state a claim against Individual 26 Defendants, Plaintiff has failed to serve them properly with the 27 summons and complaint in this action. 28 attempted to effect service on Individual Defendants by delivering 9 Plaintiff contends that he 1 the summons and complaint to an assistant in the Mayor’s office. 2 Because that assistant was not authorized to accept service on 3 behalf of Individual Defendants, Plaintiff’s attempt to serve 4 Individual Defendants is insufficient and his claims against them 5 must be dismissed on this ground, as well. 6 CONCLUSION 7 For the reasons set forth above, SFPD’s motion to dismiss 8 (Docket No. 12) and Individual Defendants’ motion to dismiss 9 (Docket No. 19) are both GRANTED. Plaintiff’s claims under 42 United States District Court For the Northern District of California 10 U.S.C. § 1981 and section 51 of the California Civil Code are 11 dismissed with prejudice. 12 pursuant to the instructions above, by filing a second amended 13 complaint within twenty-one days of this order. 14 Plaintiff may amend his other claims, The second amended complaint and summons must be served on 15 all Defendants. 16 documents properly, Plaintiff should consult the Court’s guide for 17 pro se litigants, Representing Yourself in Federal Court: A 18 Handbook for Pro Se Litigants, which is available free of charge 19 from the Clerk’s office and may be downloaded from the Court’s 20 website at 21 For rules and instructions on how to serve these IT IS SO ORDERED. 22 23 24 Dated: 4/18/2013 CLAUDIA WILKEN United States District Judge 25 26 27 28 10

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