Godfrey v. Oakland Police Department

Filing 18

ORDER by Judge Kandis A. Westmore granting 7 Motion to Dismiss. (kawlc2, COURT STAFF) (Filed on 3/29/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LAVON GODFREY,
Plaintiff,

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Case No. 17-cv-06560-KAW
ORDER GRANTING MOTION TO
DISMISS

v.
OAKLAND POLICE DEPARTMENT,

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United States District Court
Northern District of California

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Defendant.

Re: Dkt. No. 7

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On November 13, 2017, Plaintiff Lavon Godfrey filed this suit against Defendant Oakland

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Police Department, asserting a 42 U.S.C. § 1983 claim. (Compl., Dkt. No. 1.) On February 26,

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2018, Defendant filed the instant motion to dismiss. (Def.'s Mot. to Dismiss, Dkt. No. 7.) The

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Court deems the matter suitable for disposition without hearing pursuant to Civil Local Rule 7-

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1(b), and VACATES the April 5, 2018 hearing. Upon consideration of the parties' filings, and for

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the reasons stated below, the Court GRANTS Defendant's motion to dismiss.

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I.

BACKGROUND

On December 14, 2016, Plaintiff obtained a temporary restraining order ("TRO") against

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her sister, Laqutia Perry. (Compl. at 4.) On December 30, 2016, Ms. Perry came to Plaintiff's

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home in violation of the TRO. (Compl. at 3-4.) After Ms. Perry attacked Plaintiff, Plaintiff called

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911 for assistance. (Compl. at 4.) When the officers arrived, Plaintiff attempted to explain what

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happened. Several of the responding officers had previously responded to Plaintiff's calls for

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assistance with respect to Ms. Perry.

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Plaintiff alleges that she heard an unidentified officer state, "We came here so many times,

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someone is going to jail tonight." (Compl. at 4.) Plaintiff was then arrested. Plaintiff tried to tell

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the officers about the TRO, and asked that Ms. Perry be placed under arrest for violating the TRO.

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Plaintiff then suffered a panic attack and was taken to Highland Hospital. There, Plaintiff spoke

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with Sergeant Patrick Gonzales. Plaintiff again explained that she had a TRO against Ms. Perry,

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and that she was not the aggressor in the situation. Plaintiff also explained that she was the sole

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caretaker for her mother, who had to be left at home unattended when Plaintiff was arrested.

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Sergeant Gonzales spoke to the responding officers, and then gave Plaintiff a citation for assault

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with a deadly weapon.
Plaintiff was later denied a permanent restraining order against Ms. Perry due to her arrest

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and assault charge. (Compl. at 4.) She was also billed $2,147.24 for emergency transport.
Based on this incident, Plaintiff filed the instant complaint, asserting a single claim under

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42 U.S.C. § 1983 against the Oakland Police Department. (Compl. at 5.) No claims are alleged

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United States District Court
Northern District of California

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against individual officers. Plaintiff's claim is based on "assault, battery, false imprisonment,

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negligence, negligent hiring, and intentional infliction of emotional distress, and negligent

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infliction of emotional distress," which was caused by the "conduct of individual employees,

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agents, and/or servants of" Defendant.
On February 26, 2018, Defendant filed a motion to dismiss Plaintiff's claim for failure to

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state a claim. (Def.'s Mot. to Dismiss at 2.) On March 12, 2018, Plaintiff filed her opposition.

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(Plf.'s Opp'n, Dkt. No. 12.) On March 19, 2018, Defendant filed its reply. (Def.'s Reply, Dkt. No.

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14.)

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II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based

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on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule

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12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250

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F.3d 729, 732 (9th Cir. 2001).

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In considering such a motion, a court must "accept as true all of the factual allegations

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contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation

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omitted), and may dismiss the case or a claim "only where there is no cognizable legal theory" or

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there is an absence of "sufficient factual matter to state a facially plausible claim to relief."

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Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing
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Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation

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marks omitted).

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A claim is plausible on its face when a plaintiff "pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

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Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate

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"more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

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will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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"Threadbare recitals of the elements of a cause of action" and "conclusory statements" are
inadequate. Iqbal, 556 U.S. at 678; see also Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th

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Cir. 1996) ("[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat

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United States District Court
Northern District of California

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a motion to dismiss for failure to state a claim."). "The plausibility standard is not akin to a

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probability requirement, but it asks for more than a sheer possibility that a defendant has acted

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unlawfully . . . When a complaint pleads facts that are merely consistent with a defendant's

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liability, it stops short of the line between possibility and plausibility of entitlement to relief."

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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal citations omitted).

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Generally, if the court grants a motion to dismiss, it should grant leave to amend even if no

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request to amend is made "unless it determines that the pleading could not possibly be cured by

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the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations

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omitted).

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III.

DISCUSSION

Defendant argues that Plaintiff's § 1983 claim should be dismissed because Plaintiff fails to

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identify an official policy or custom, and because negligence and intentional tort claims are not

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enforceable under § 1983. (Def.'s Mot. to Dismiss at 4-5.) The Court agrees.

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In general, local governments are "persons" subject to liability under 42 U.S.C. § 1983

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where official policy or custom causes a constitutional tort, see Monell v. Dep't of Soc. Servs., 436

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U.S. 658, 690 (1978); however, a city or county may not be held vicariously liable for the

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unconstitutional acts of its employees under the theory of respondeat superior. See Bd. of Cty.

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Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v.
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City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). Thus, to impose municipal liability under §

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1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff possessed a

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constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) that

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this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) that the

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policy is the moving force behind the constitutional violation. See Plumeau v. Sch. Dist. #40 Cty.

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of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).

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Here, Plaintiff is suing a municipality under § 1983; thus, she must "identify a municipal
'policy' or 'custom' that caused the plaintiff's injury." Bd. of Cty. Comm'rs of Bryan Cty., 520 U.S.

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at 403. Plaintiff does not do so. In her opposition, Plaintiff asserts that her Monell claim is based

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on her having a restraining order against Ms. Perry, which the responding officers ignored. (Plf.'s

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United States District Court
Northern District of California

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Opp'n at 3.) Plaintiff does not, however, allege that Defendant has a policy or custom of ignoring

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restraining orders. Because Plaintiff has failed to identify a policy or custom, or allege adequate

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facts in support of a policy or custom, Plaintiff's § 1983 claim fails.

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Additionally, Plaintiff's § 1983 claim fails to the extent it is based on state tort or

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negligence claims. "Section 1983 imposes liability for violations of rights protected by the

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Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type

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of injury must be sought in state court under traditional tort-law principles." Baker v. McCollan,

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443 U.S. 137, 146 (1979). Likewise, "negligence cannot form the basis of a section 1983 claim."

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Moten v. Renwich, 54 Fed. Appx. 658, 658 (2003) (citing Baker, 443 U.S. at 146). Here,

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Plaintiff's § 1983 claims are based on "State statutory violations, which might include but are not

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limited to assault, battery, false imprisonment, negligence, negligent hiring, and intentional

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infliction of emotional distress, and negligent infliction of emotional distress." The state law tort

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claims cannot form the basis for Plaintiff's § 1983 claim. See Moten, 54 Fed. Appx. at 658

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(affirming dismissal of § 1983 claim based on negligence); Smith v. Cal. Dep't of Corr. & Rehab.,

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No. ED CV 15-666-JAK (DFM), 2015 WL 4092620, at *3 (E.D. Cal. July 6, 2015) ("False

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imprisonment and infliction of emotional distress are state law tort claims. Plaintiff's state-law

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claims do not fall under § 1983, but under the California Tort Claims Act").

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IV.

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CONCLUSION

For the reasons stated above, the Court GRANTS Defendant's motion to dismiss. Plaintiff
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is, however, given leave to amend the complaint. The amended complaint must, at the least,
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identify the constitutional rights that Plaintiff asserts were violated, as well as the specific policy
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or custom that resulted in the constitutional violation. Plaintiff shall file an amended complaint on
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or before April 30, 2018. Failure to timely file an amended complaint that complies with this
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order may result in the dismissal of this action.
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Plaintiff is advised that the amended complaint will supersede or replace all previous
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complaints and those complaints will be treated as nonexistent. Armstrong v. Davis, 275 F.3d
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849, 878 n.40 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499
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(2005). The amended complaint must therefore be complete in itself without reference to the prior
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United States District Court
Northern District of California

or superseded pleading, as "[a]ll causes of action alleged in an original complaint which are not
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alleged in an amended complaint are waived." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)
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(internal citations omitted).
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In amending her complaint, Plaintiff is advised to contact the Federal Pro Bono Project's
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Help Desk—a free service for pro se litigants—to make an appointment by calling (415) 78216
8982. She should bring a copy of this order and her complaint to the appointment. Plaintiff may
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also wish to consult a manual the court has adopted to assist pro se litigants in presenting their
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case. This manual, and other free information for pro se litigants, is available online at:
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http://cand.uscourts.gov/proselitigants .
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IT IS SO ORDERED.
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Dated: March 29, 2018
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__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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