Mohammad v. The King City Police Department

Filing 22

ORDER (1) GRANTING DEFENDANT'S MOTION QUASH AND MOTION TO DISMISS WITH LEAVE TO AMEND AND (2) VACATING THE MOTION HEARING AND CASE MANAGEMENT CONFERENCE. Signed by Judge Beth Labson Freeman on 10/27/2016. (blflc2S, COURT STAFF) (Filed on 10/27/2016)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

SAN JOSE DIVISION

6
KHALID MOHAMMAD,

7

Plaintiff,
8
v.
9
THE KING CITY POLICE DEPARTMENT,

10

Defendant.

United States District Court
Northern District of California

11

Case No. 16-cv-02903-BLF
ORDER (1) GRANTING DEFENDANT’S
MOTION QUASH AND MOTION TO
DISMISS WITH LEAVE TO AMEND
AND (2) VACATING THE MOTION
HEARING AND CASE MANAGEMENT
CONFERENCE
[Re: ECF 15]

12
13

Plaintiff Khalid Mohammad, proceeding pro se and in forma pauperis, brings this civil

14

rights action against the King City Police Department (“KCPD”). See generally First Am.

15

Compl., ECF 11 (hereinafter “FAC”); ECF 12. Plaintiff alleges that KCPD officer Bobby

16

Carrillo,1 acting in his official capacity, arrested him on November 16, 2004, in King City,

17

California. FAC ¶¶ 2, 7. He further alleges that he was incarcerated in California from that date

18

until December 4, 2011, without prosecution, a court order, an underlying conviction, verdict of

19

guilty, plea of guilty, finding of guilt, admission of guilt, and/or his consent. Id. ¶¶ 1, 4, 7. For

20

this conduct, Plaintiff brings claims under California Government Code §§ 815–818.92 and 42

21

U.S.C. § 1983. Id. ¶ 4. As to the latter, Plaintiff seeks to hold KCPD liable “under the standard

22

established by the United States Supreme Court in Monell v. Department of Social Services, 436

23

U.S. 658 (1978),” and for unlawful imprisonment in violation of the Fourteenth Amendment. Id.

24
25

KCPD, specially appearing through counsel, seeks to quash service of process and dismiss
Mohammad’s complaint without leave to amend pursuant to Fed. R. Civ. P. 12(b)(4), 12(b)(5),

26
27
28

1
2

Officer Carrillo is not named as a defendant in this action.
The Court construes Mohammad’s reference to these sections of the California Government
Code, which address the liability of public entities, as attempt to allege that Defendant is not
immune from liability, rather than a separate cause of action.

1

and 12(b)(6). See Mot., ECF 15. Plaintiff did not file an opposition to Defendant’s motion, and

2

Defendant filed a notice of no opposition. ECF 20. For the reasons stated herein, KCPD’s motion

3

to quash service of process and to dismiss the FAC is GRANTED WITH LEAVE TO AMEND.

4

Accordingly, the Court VACATES the motion hearing and case management conference

5

scheduled for November 17, 2016.

6
7

I.

LEGAL STANDARD
A.

Motion to Dismiss Pursuant to Rule 12(b)(6)
“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

8

claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation

10

Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d

11
United States District Court
Northern District of California

9

729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts

12

as true all well-pled factual allegations and construes them in the light most favorable to the

13

plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the

14

Court need not “accept as true allegations that contradict matters properly subject to judicial

15

notice” or “allegations that are merely conclusory, unwarranted deductions of fact, or

16

unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)

17

(internal quotation marks and citations omitted). While a complaint need not contain detailed

18

factual allegations, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to

19

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

20

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the

21

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

22
23

B.

Motion to Quash or Dismiss Pursuant to Rules 12(b)(4) and 12(b)(5)
The Court lacks jurisdiction over defendants who have not been properly served. SEC v.

24

Ross, 504 F.3d 1130, 1138–39 (9th Cir. 2007). Accordingly, Federal Rules of Civil Procedure

25

12(b)(4) and 12(b)(5) permit a court to dismiss an action for insufficiency of service of process.

26

Fed. R. Civ. P. 12(b)(4)–(5). Rule 12(b)(4) enables the defendant to challenge the substance and

27

form of the summons, and 12(b)(5) allows the defendant to attack the manner in which service

28

was, or was not, attempted. When the validity of service is contested, the burden is on the plaintiff
2

1

to prove that service was valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.

2

2004). If the plaintiff is unable to satisfy this burden, the Court has the discretion to either dismiss

3

the action or retain the action and quash the service of process. Lowenthal v. Quicklegal, Inc., No.

4

16-cv-3237, 2016 WL 5462499, at *14 (N.D. Cal. Sept. 28, 2016). “Dismissals for defects in the

5

form of summons are generally disfavored.” U.S.A. Nutrasource, Inc. v. CNA Ins. Co., 140 F.

6

Supp. 2d 1049, 1052 (N.D. Cal. 2001).

7
8
9

II.

DISCUSSION
A.

Failure to State a Claim
Defendant seeks dismissal of this action on the ground that Mohammad’s claim is barred

by section 1983’s two-year statute of limitations. Mot. 5. Plaintiff alleges that he was arrested on

11
United States District Court
Northern District of California

10

November 16, 2004, and was imprisoned from that date until December 4, 2011. FAC ¶ 1.

12

Mohammad further alleges that KCPD “specifically via interrogations of the plaintiff,” waived its

13

statute of limitations defense. Id. ¶ 8. Defendant contends that there is no authority supporting

14

Plaintiff’s claim that it waived its right to assert a statute of limitations defense. Mot. 5.

15

Section 1983 takes its limitations period from the forum state’s statute of limitations for

16

personal injury torts, see Wilson v. Garcia, 471 U.S. 261, 276 (1985), which, in California, is two

17

years. Maldonado v. Harris, 370 F.3d 945, 954–55 (9th Cir. 2004). A motion to dismiss based on

18

the statute-of-limitations defense should be granted “only if the assertions of the complaint, read

19

with the required liberality, would not permit the plaintiff to prove that the statute was tolled.”

20

Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980) (citation and internal

21

quotation marks omitted).

22

Here, the alleged unlawful conduct ended December 4, 2011, nearly five years before

23

Plaintiff filed suit. Plaintiff, in an attempt to address the statute of limitations issue, alleges that

24

Defendant waived its statute of limitations defense “via interrogations of the plaintiff.” While the

25

Court construes this as Plaintiff’s attempt to allege estoppel or tolling of the limitations period, it

26

is insufficient. Plaintiff must allege facts relating to the timing of his filing or reasons for his

27

delay. See, e.g., Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002) (“Where the danger of

28

prejudice to the defendant is absent, and the interests of justice so require, equitable tolling of the
3

1

limitations period may be appropriate.”); Dutro v. Cty. of Contra Costa, No. 12-cv-2972, 2013

2

WL 544431, at *5 (N.D. Cal. Sept. 30, 2013) (“A public entity may be estopped from asserting the

3

limitations of the claims statute where its agents or employees have prevented or deterred the

4

filing of a timely claim by some affirmative act.”). Because Plaintiff has not sufficiently alleged

5

facts supporting the application of tolling or estoppel, and because this deficiency may be curable

6

by amendment, Defendant’s motion to dismiss for failure to state a claim is GRANTED WITH

7

LEAVE TO AMEND.

8
9

B.

Improper Service
KCPD also moves quash service of process. Mot. 4. According to Defendant, Plaintiff

attempted to serve the FAC by mail service to the KCPD on or about August 9, 2016. Mot. 3.

11
United States District Court
Northern District of California

10

Defendant contends that this form of service was deficient as to the proper defendant, the City of

12

King City, because service of summons on a public entity must be on the clerk, secretary,

13

president, presiding officer, or other head of the governing body, or on the executive officer. Id. at

14

4 (citing Cal. Civ. Proc. Code § 416.50; Fed. R. Civ. P. 4(j)(2)(B)).

15

Plaintiff is proceeding in forma pauperis, and therefore service of his FAC was directed to

16

be made by the U.S. Marshal. Fed. R. Civ. P. 4(c)(3). Service by the U.S. Marshal must meet the

17

requirements set forth in Rule 4(e) in order to be effective. Plaintiff was required to submit to the

18

U.S. Marshal a completed USM-285 form to effectuate service. Plaintiff apparently submitted a

19

defective form, as he listed KCPD as the entity to be served rather than the City of King City. See

20

ECF 21 (summons returned executed); Vance v. Cty. of Santa Clara, 928 F. Supp. 993, 996 (N.D.

21

Cal. 1996) (noting that the county is the proper defendant in a section 1983 municipal liability

22

claim, not the sheriff’s office). Because Plaintiff did not oppose Defendant’s motion, Plaintiff has

23

not met his burden to demonstrate that service was proper.

24

Courts are to broadly construe pleadings filed by pro se litigants and give such plaintiffs

25

“the benefit of any doubt.” See, e.g., Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985).

26

Nevertheless, even pro se litigants must comply with the Federal Rules of Civil Procedure.

27

Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986) (“pro se litigants in the ordinary civil case

28

should not be treated more favorably than parties with attorneys of record”); Carter v. Comm’r of
4

1

Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986) (pro se litigants expected to abide by the

2

rules of the court in which litigation proceeds). The Court will therefore GRANT Defendant’s

3

motion to quash service under Rule 12(b)(5). However, Plaintiff will be given an opportunity to

4

cure the service error.
The Court will also grant Plaintiff an extension of the 90-day service deadline set forth in

5

Fed. R. Civ. P. 4(m). Courts have broad discretion to extend the time for service under Rule 4(m).

7

Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). The service period contained in Rule 4(m)

8

“operates not as an outer limit subject to reduction, but as an irreducible allowance.” Henderson

9

v. United States, 517 U.S. 654, 661 (1996). Indeed, “Rule 4(m) explicitly permits a district court

10

to grant an extension of time to serve the complaint[.]” Mann v. Am. Airline, 324 F.3d 1088, 1090

11
United States District Court
Northern District of California

6

(9th Cir. 2003). Given that Plaintiff is proceeding pro se, the Rule 4(m) service deadline will be

12

extended in order to afford him a second chance to properly effect service of process upon the

13

proper defendant—the City of King City.3
If Plaintiff files a second amended complaint, he is advised to name the City of King City

14
15

as the defendant so that service can be properly effectuated.
For the foregoing reasons, Defendant’s motion to dismiss and quash service of process is

16
17

GRANTED WITH LEAVE TO AMEND. Plaintiff must file any amended complaint on or before

18

November 28, 2016. Failure to file an amended complaint will result in dismissal of the case.

19

Additionally, the motion hearing and case management conference scheduled for November 17,

20

2016 is VACATED.
IT IS SO ORDERED.

21
22

Dated: October 27, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

23
24
25
26
27
28

3

Plaintiff only need serve the City of King City to the extent he files a second amended complaint.
5