The Estate of Angel Lopez et al v. Torres et al

Filing 16

ORDER Vacating Hearing and Granting 12 Defendant Torres's Motion to Dismiss. The hearing set for May 1, 2015 at 1:30 p.m. is vacated and Plaintiff's Complaint is dismissed without prejudice as to Agent Torres only. Signed by Judge Gonzalo P. Curiel on 4/29/15. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE ESTATE OF ANGEL LOPEZ by
and through its successors in interest,
LYDIA LOPEZ; LYDIA LOPEZ;
ANGEL LOPEZ, JR. and HECTOR
LOPEZ, by and through their guardian
ad litem, LYDIA LOPEZ,

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v.

Plaintiffs,

CASE NO. 15-CV-0111-GPC-MDD
ORDER VACATING HEARING
AND GRANTING DEFENDANT
TORRES’S MOTION TO DISMISS
[ECF No. 12]

LOU TORRES; ANDREW MILLS;
SCOTT HOLSLAG; STEVE
RIDDLE; LT LEOS; ALEC POJAS;
and DOES 2-30,
Defendants.

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INTRODUCTION

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Presently before the Court is a Motion to Dismiss filed by Defendant Lou Torres.

22 (ECF No. 12.) The parties have fully briefed the motion. (ECF Nos. 14, 15.) Pursuant
23 to Civil Local Rule 7.1(d)(1), the Court finds the matter suitable for adjudication
24 without oral argument. For the following reasons, the Court GRANTS Defendant
25 Torres’s Motion to Dismiss.
26 ///
27 ///
28 ///
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1
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FACTUAL BACKGROUND
This case arises from the shooting death of Angel Lopez (“Lopez”) on January

3 17, 2013. Plaintiffs allege that shortly after 8:00 a.m. on January 17, 2013, a heroin
4 dealer and police informant named Alec Pojas (“Pojas”) placed a telephone call to
5 Defendant Lou Torres (“Agent Torres”), a parole agent employed by the California
6 Department of Corrections and Rehabilitation. (ECF No. 1, Compl. ¶¶ 9, 14, 29, 30.)
7 Pojas refused to provide his name, but told Agent Torres that Lopez and his father,
8 Alex Lopez, had kidnapped Pojas and held him prisoner in Apartment 58 of 5444
9 Reservoir Drive, San Diego, California, for over four weeks. (¶¶ 31, 33-35.) During
10 that time, Lopez and his father allegedly tortured Pojas, leaving his blood on the floor.
11 (¶¶ 36-37.) Pojas informed Agent Torres that Lopez and his father possessed an AK-47
12 and that Lopez always carried a .25 caliber pistol on his person. (¶¶ 40-41.) Pojas
13 claimed he had finally escaped the night before by jumping from a third floor balcony.
14 (¶ 38.)
15

Plaintiffs allege that Agent Torres provided the information he learned from

16 Pojas to Andrew Mills, a captain in the Eastern Division of the San Diego Police
17 Department (“Captain Mills”). (¶ 46.) Captain Mills and Agent Torres then relayed
18 the information to Lieutenant Leos (“Lt. Leos”) and Sergeant Scott Holslag (“Sgt.
19 Holslag”), also of the San Diego Police Department. (¶¶ 11, 13, 47.) According to
20 Plaintiffs, instead of investigating the reliability and accuracy of the information
21 provided by Pojas, Sgt. Holslag, with Captain Mills’s concurrence, contacted the San
22 Diego Police Department’s SWAT unit. (¶ 48.) The SWAT officers allegedly were
23 told that a kidnap victim likely was still present in Apartment 58 and was being held
24 by “cartel” members who were armed with AK-47s. (¶ 57.)
25

Pojas contacted Agent Torres several more times during the morning of January

26 17, 2013, once informing Agent Torres that he knew Lopez and his father were
27 planning to leave Apartment 58 within forty-five minutes because Pojas had scheduled
28 a meeting with them. (¶¶ 58, 60.) Plaintiffs allege that Captain Mills, Lt. Leos, and
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1 Sgt. Holslag, “in joint venture with Torres and [Defendant Steve] Riddle,” conveyed
2 this information to the SWAT unit and asked them to seize and arrest Lopez. (¶¶ 59,
3 62.)
4

Later that morning, SWAT units arrived at 5444 Reservoir Drive. (¶ 64.) At

5 12:56 p.m., a car occupied by Lopez and Xavier Lenyoun, the lessee of Apartment 58,
6 left the parking lot. (¶ 66.) The SWAT unit maneuvered to stop the car and then
7 pointed machine guns at the occupants. (¶¶ 66-7.) Lopez and Xavier Lenyoun fled
8 back into the building. (¶¶ 67, 69.) SWAT officers entered the building and Officer
9 Kristopher Walb (“Officer Walb”) encountered Lopez in a third floor hallway. (¶¶ 6810 9.). Officer Walb shouted at Lopez to get down, and Plaintiffs allege that Lopez
11 complied and was in a kneeling position when Officer Walb shot him twice in the back
12 and once in the back of the head with a MP-5 submachine gun. (¶¶ 69-70.) Officer
13 Walb later explained in a statement to other police officers that he remembered being
14 told earlier that day that the suspect was always armed with a .25 caliber pistol and that
15 thought went through his mind just before he shot and killed Lopez. (¶ 72.) Plaintiffs
16 allege that SWAT officers did not administer first aid to Lopez because they believed
17 persons armed with AK-47s were in nearby Apartment 58. (¶ 74.)
18

Subsequent investigation revealed that Lopez was not armed, no one was in

19 Apartment 58, there were no AK-47s in the apartment, and Pojas’s blood was not on
20 the apartment floor. (¶¶ 71, 77.) None of the neighbors in the apartment building had
21 ever heard any unusual noises or screaming coming from Apartment 58. (¶ 51.)
22 Further, the balcony of Apartment 58 was observed to be approximately 23 to 25 feet
23 above the ground, making it exceedingly unlikely that Pojas could have jumped
24 without sustaining a broken leg or worse. (¶ 54.) Plaintiffs allege that Pojas relayed
25 all of this false information to Agent Torres in order to obtain revenge against Lopez
26 for not paying Pojas for some heroin. (¶¶ 31-2, 77.) Pojas knew Lopez was on parole
27 and wanted for a parole violation and sought to manipulate police into harming Lopez.
28 (Id.) Police officers did not locate and identify Pojas until the next day. (¶ 89.)
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1
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PROCEDURAL BACKGROUND
On January 16, 2015, Plaintiffs filed the instant case, alleging various claims

3 under 42. U.S.C. § 1983, as well as wrongful death pursuant to California Civil Code
4 § 377.60 et seq..1 (ECF No. 1.) On January 29, 2015, the Court low-numbered the
5 related case of The Estate of Angel Lopez, et al. v. City of San Diego, et al., 13cv22406 GPC-MDD, in which this Court’s Order Granting in Part and Denying in Part
7 Defendants’ Motion for Summary Judgment is under review with the Ninth Circuit.
8 (See 13cv2240-GPC-MDD, ECF. Nos. 59-60.)
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On February 17, 2015, Defendant Torres moved to dismiss the Complaint. (ECF

10 No. 12.) Plaintiffs timely opposed the motion on March 27, 2015 (ECF No. 14), and
11 Defendant Torres filed a reply on April 10, 2015 (ECF No. 15).
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LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the

14 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
15 Dismissal is warranted under Rule12(b)(6) where the complaint lacks a cognizable
16 legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.
17 1984); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule12(b)(6)
18 authorizes a court to dismiss a claim on the basis of a dispositive issue of law”).
19 Alternatively, a complaint may be dismissed where it presents a cognizable legal theory
20 yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While
21 a plaintiff need not give “detailed factual allegations,” a plaintiff must plead sufficient
22 facts that, if true, “raise a right to relief above the speculative level.” Bell Atlantic
23 Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a
24 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
25 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
26 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual
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The state law claim for wrongful death is against Defendant Pojas only. (ECF No. 1.)
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1 allegations permit “the court to draw the reasonable inference that the defendant is
2 liable for the misconduct alleged.” Id. In other words, “the non-conclusory ‘factual
3 content,’ and reasonable inferences from that content, must be plausibly suggestive of
4 a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969
5 (9th Cir. 2009). “Determining whether a complaint states a plausible claim for relief
6 will . . . be a context-specific task that requires the reviewing court to draw on its
7 judicial experience and common sense.” Iqbal, 556 U.S. at 679.
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In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the

9 truth of all factual allegations and must construe all inferences from them in the light
10 most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th
11 Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal
12 conclusions, however, need not be taken as true merely because they are cast in the
13 form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003);
14 W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a
15 motion to dismiss, the court may consider the facts alleged in the complaint, documents
16 attached to the complaint, documents relied upon but not attached to the complaint
17 when authenticity is not contested, and matters of which the court takes judicial notice.
18 Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
19

DISCUSSION

20 A.

Excessive Force

21

Defendant argues that Plaintiffs’ claim for excessive force fails to state a viable

22 cause of action because Agent Torres was not an integral participant in the alleged use
23 of excessive force. (ECF No. 12-1 at 4.) Further, Defendant contends that Plaintiffs
24 fail to adequately plead causation. (Id.) To the extent Plaintiffs seek to impose liability
25 on Agent Torres under a “joint venture” theory, Defendant contends that this claim also
26 fails. (Id.)
27

Excessive force claims relating to police conduct during an arrest must be

28 analyzed under the Fourth Amendment and its reasonableness standard. Plumhoff v.
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1 Rickard, __ U.S. __, 134 S. Ct. 2012, 2020 (2014); Graham v. Connor, 490 U.S. 386,
2 394-95 (1989). Proper application of the reasonableness standard requires a court to
3 assess the specific facts of the case, “including the severity of the crime at issue,
4 whether the suspect poses an immediate threat to the safety of the officers or others,
5 and whether he is actively resisting arrest or attempting to evade arrest by flight.”
6 Graham, 490 U.S. at 396. However, this list of factors is not exclusive; the court must
7 “[]examine the totality of the circumstances and consider ‘whatever specific factors
8 may be appropriate in a particular case, whether or not listed in Graham.’” Mattos v.
9 Agarano, 661 F.3rd 433, 441 (9th Cir. 2011) (quoting Bryan v. MacPherson, 630 F.3d
10 805, 826 (9th Cir. 2010)). The standard is to be applied objectively, without
11 consideration of the officers’ “underlying intent or motivation.” Graham, 490 U.S. at
12 397.
13

The Supreme Court further explained in Graham that the analysis must be

14 whether the force was reasonable at the moment it was applied. Id. at 396. In other
15 words, “[t]he ‘reasonableness’ of a particular use of force must be judged from the
16 perpective of a reasonable officer on the scene, rather than with the 20/20 vision of
17 hindsight.” Id.
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1.

19

Because it is undisputed that Officer Walb shot and killed Lopez, Plaintiffs’ facts

Agent Torres was not an Integral Participant

20 only support his excessive force claim against Agent Lopez if they show that he was
21 an integral participant in the force used. The “integral participant” doctrine “extends
22 liability to those actors who were integral participants in the constitutional violation,
23 even if they did not directly engage in the unconstitutional conduct themselves.”
24 Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009). This requires “some
25 fundamental involvement in the conduct that allegedly caused the violation.”
26 Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (citing Boyd v.
27 Benton Cnty., 374 F.3d 773, 780 (9th Cir. 2004) (finding liable for excessive force
28 every officer who provided armed backup for the officer who gained entry to a
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1 suspect’s home by unconstitutionally deploying a flash-bang device because “every
2 officer participated in some meaningful way” in the arrest and “every officer was aware
3 of the decision to use the flash-bang, did not object to it, and participated in the search
4 operation knowing the flashbang was to be deployed”)). An officer who was a “mere
5 bystander” or who simply was part a “team” that collectively caused the constitutional
6 violation is not on that basis alone considered fundamentally involved. See Chuman
7 v. Wright, 76 F.3d 292, 294-95 (9th Cir. 1996).
8

Plaintiffs’ Complaint bases Agent Torres’s liability on the fact that he failed to

9 properly analyze and investigate information obtained from an anonymous informant,
10 which he knew or should have known was false, before conveying it to the police
11 department with reckless or deliberate indifference to its truth or falsity. (ECF No. 14
12 (citing ECF No. 1 ¶ 102.)) More specifically, by informing Captain Mills that Lopez
13 was armed with a pistol, had kidnapped someone, and could be found in or near an
14 apartment that contained an AK-47, Plaintiffs allege that Agent Torres “set in motion
15 the acts which led to the death of Angel Lopez.” (ECF No. 1 ¶ 103.) Though Plaintiffs
16 initially allege that Sgt. Holslag, “with the concurrence of Mills,” is the one who
17 requested SWAT involvement, (see ECF No. 1 ¶48), Plaintiffs state later in the
18 Complaint that “Mills, Leos, and Holslag, with the participation in this joint venture
19 of Torres and Riddle, requested the assistance of the SWAT unit.” (Id. ¶ 62.) Though
20 Agent Torres never went to 5444 Reservoir Drive on the morning of January 17, 2013,
21 Plaintiffs contend that Agent Torres knew, or should have known, that his improper
22 actions would cause police officers to use excessive force against Lopez. (ECF No. 14
23 at 10-11.)
24

Even accepting all of Plaintiffs’ allegations as true, as the Court is bound to do

25 (see Thompson, 295 F.3d at 895), the Court finds no law supporting Plaintiffs’
26 assertion that an officer who was not at the scene of the alleged excessive use of force
27 nonetheless can be considered an “integral participant” in the constitutional
28 deprivation. Cf. Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008) (finding
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1 that detective who conducted investigation and provided information to arresting
2 officers was not an integral participant in the unlawful arrest because she was not
3 present when the arrest was made); Bravo v. City of Santa Maria, 665 F.3d 1076, 1090
4 (9th Cir. 2011) (concluding that officers who conducted a background investigation,
5 but were not present during SWAT unit’s unlawful residential search, were not integral
6 participants); Cunningham v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000), as amended
7 (Oct. 31, 2000) (finding that non-present officers could not be held liable for failing to
8 intercede to prevent their fellow officers from shooting the plaintiff); Monteilh v.
9 County of Los Angeles, 820 F. Supp. 2d 1081, 1090 (C.D. Cal. 2011) (confirming that
10 officers must “provide some affirmative physical support at the scene of the alleged
11 violation...” in order to be considered integral participants). It is undisputed that Agent
12 Torres was not at the scene when Officer Walb fired on Lopez. The Complaint does
13 not allege that Agent Torres instructed the SWAT officers to enter the apartment
14 building or to shoot Lopez. Agent Torres did not witness Lopez’s actions and was not
15 in a position to assess whether Lopez posed a safety risk to officers or whether Lopez
16 was attempting to evade arrest. Without being present at the scene, Agent Torres also
17 could not intervene to stop the SWAT unit’s use of force.2 Thus, Plaintiffs fail to
18 allege sufficient facts to support their excessive force claim.
19

2.

20

Defendant also argues that supplying information to police about a parole

Agent Torres was not the Proximate Cause of Lopez’s Death

21 violator does not constitute causation for purposes of an excessive force claim and,
22 regardless, the SWAT unit’s actions were an intervening cause. (ECF No. 12-1 at 4,
23 7-8.) Plaintiffs counter that a causal connection was established because Agent
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2

Plaintiffs also do not allege that Agent Torres had any supervisory role over the SWAT

26 officers such that he had a responsibility to train the officers or ensure that the operation was properly
executed. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“[a] supervisor is only liable for

27 constitutional violations of his subordinates if the supervisor participated in or directed the violations,

or knew of the violations and failed to act to prevent them. There is no respondeat superior liability

28 under section 1983”).

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1 Torres’s actions were the “moving force” behind the series of events that lead to the
2 foreseeable harm of Lopez being shot by a SWAT officer. (ECF No. 14 at 12.)
3

Section 1983 creates a cause of action based on personal participation by a

4 defendant. Taylor, 880 F.2d at 1045 (“Liability under section 1983 arises only upon
5 a showing of personal participation by the defendant”). A person deprives another “of
6 a constitutional right, within the meaning of section 1983, if he does an affirmative act,
7 participates in another’s affirmative acts, or omits to perform an act which he is legally
8 required to do that causes the deprivation.” Johnson v. Duffy, 588 F.2d 740, 743 (9th
9 Cir. 1978). “To meet this causation requirement, the plaintiff must establish both
10 causation-in-fact and proximate causation.” Harper v. City of Los Angeles, 533 F.3d
11 1010, 1026 (9th Cir. 2008). “The inquiry into causation must be individualized and
12 focus on the duties and responsibilities of each individual defendant whose acts or
13 omissions are alleged to have caused the constitutional deprivation.” Leer v. Murphy,
14 844 F.2d 628, 633 (9th Cir. 1988).
15

Plaintiffs contend that Agent Torres set in motion the sequence of events that

16 resulted in a SWAT officer shooting Lopez and, therefore, was the proximate cause of
17 his death. (ECF No. 14 at 12-13.) Plaintiffs rely on Johnson, 588 F.2d at 743-44,
18 wherein the Ninth Circuit held that an individual who did not personally participate in
19 a constitutional deprivation may nonetheless be found liable under section 1983 if he
20 or she “set[s] in motion a series of acts by others which the actor knows or reasonably
21 should know would cause others to inflict the constitutional injury.” (See ECF No. 14
22 at 12.) This argument fails for two reasons. First, it is not reasonable to say that Agent
23 Torres knew or should have known that providing a police officer with the name and
24 anticipated whereabouts of a wanted parole violator—even if he also conveyed that the
25 individual was armed with a pistol and an AK-47, was in a cartel, had held someone
26 hostage and tortured him for four weeks, and still might have a hostage—would result
27 in a SWAT officer shooting Lopez in the back of the head. This Court is not prepared
28 to set the precedent that the mere act of calling in SWAT (a decision which Plaintiffs
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1 do not allege to be within Agent Torres’s authority to make anyway) should reasonably
2 be anticipated to result in the use of excessive force. Second, Agent Lopez was not a
3 supervisor, and thus not the individual responsible for deciding what, if any,
4 investigation the police department would undertake or whether to send in the SWAT
5 unit. See Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005) (confirming that a
6 supervisor who was the moving force behind acts he knew or reasonably should have
7 known would result in a constitutional injury can be found liable, even when he did not
8 directly participate in the acts), overruled on other grounds by United States v. King,
9 687 F.3d 1189 (9th Cir. 2012).
10

Furthermore, even assuming Agent Torres caused the series of acts to be set in

11 motion that ultimately lead to Lopez’s shooting, he was not the proximate cause of
12 Lopez’s death because the actions of the SWAT unit were an intervening event. (See
13 ECF No. 12-1 at 7.) Traditional tort law’s dictate that an abnormal or unforeseen
14 action that intervenes to break the chain of proximate causality applies in section 1983
15 actions. Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996); see also
16 Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989) (confirming that
17 in a § 1983 action, a superseding intervening cause that is reasonably foreseeable will
18 not relieve a defendant of liability, but an “‘unforeseen and abnormal’ intervention”
19 will break the chain of proximate causation) (quoting Marshall v. Perez Arzuaga, 828
20 F.2d 845, 848 (1st Cir.1987), cert. denied, 484 U.S. 1065 (1988)). It was the SWAT
21 team’s decision to use submachine guns, to pursue Lopez when he fled into the
22 apartment building, and to shoot him when he allegedly was kneeling in compliance
23 with the Officer Walb’s order. Agent Torres could not have foreseen that highly
24 trained SWAT officers allegedly would use excessive force in attempting to arrest
25 Lopez. Therefore, the Court finds that Plaintiffs have failed to sufficiently plead facts
26 ///
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1 demonstrating that Agent Torres was the proximate cause of Lopez’s shooting.3
2

Accordingly, the Court GRANTS Defendant Torres’s motion to dismiss

3 Plaintiffs’ excessive force claim.
4 B.

Wrongful Death

5

Plaintiffs’ second cause of action is for wrongful death under 42 U.S.C. § 1983.

6 (ECF No. 1 at 16-17.) The parties dispute whether a wrongful death claim may be
7 brought pursuant to 42 U.S.C. §1983. (ECF No. 12-1 at 9; ECF No. 14 at 18-19.)
8

Defendant contends that wrongful death is a state law claim, which cannot be

9 maintained for two reasons. (ECF No. 12 at 9-10.) First, a valid §1983 claim must
10 allege violation of a right secured by the Constitution and the laws of the United States.
11 (Id. at 9 (citing West v. Atkins, 487 U.S. 42, 48 (1988))). Second, to the extent
12 Plaintiffs actually seek to assert a state law claim (instead of a claim under §1983), this
13 too fails because Plaintiffs must plead compliance with California’s Government
14 Claims Act in order to do so, and Plaintiffs have not. (Id.) Plaintiffs confirm that they
15 are not attempting to assert a state law claim and, thus, had no obligation to comply
16 with California’s Government Claims Act. (ECF No. 14 at 18-19.) But, relying on
17 Smith v. City of Fontana, 818 F.2d 1411, 1416-17 (9th Cir. 1987) and Chaudhry v. City
18 of Los Angeles, 751 F.3d 1096, 1103 (9th Cir. 2014), argue that a wrongful death action
19 may, in fact, be pled under § 1983. (ECF No. 14 at 18-19.)
20

The confusion seems to be in that some courts (primarily in unpublished

21
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3

For the same reasons, the Court rejects Plaintiffs’ argument that Agent Torres remains liable

23 by virtue of his participation in a “joint venture” to deploy the SWAT unit. (ECF Nos. 62-63, 102.)
As an initial matter, the term “joint venture” implies a conspiracy-like meeting of the minds, which

24 Plaintiff has not alleged plausibly to have occurred. See Twombly, 550 U.S. at 556 (holding that bare
assertions of a conspiracy will not satisfy the plausibility requirement at the pleading stage; the

25 complaint must contain “enough factual matter (taken as true) to suggest that an agreement was

made”); Buckley v. Gomez, 36 F. Supp. 2d 1216, 1221 (S.D. Cal. 1997) ( “Where a complaint contains

26 merely conclusory, vague or general allegations of a conspiracy to deprive a person of constitutional
rights, it must be dismissed”). And, even assuming Agent Torres participated in the decision to call

27 in SWAT, he could not reasonably have anticipated that the SWAT officers would use excessive force.
Officer Walb’s alleged acts were an intervening cause, breaking the causal connection, such that Agent

28 Torres was not the proximate cause of the shooting.

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1 dispositions) have allowed claims for wrongful death under § 1983 to proceed. In Arce
2 v. Blackwell, 294 Fed. Appx. 259 (9th Cir. 2008), the court described the plaintiff’s
3 action as “a wrongful death civil rights action . . . under 42 U.S.C. § 1983.” Though
4 the plaintiff alleged that the defendant deprived her deceased husband of his rights
5 under the Fourth and Fourteenth Amendments, the court analyzed the plaintiff’s claim
6 as an excessive force claim arising under the Fourth Amendment. Arce, 294 Fed. App.
7 at 260-61. Likewise, in Gaxiola v. City of Richmond Police Dep’t, 131 Fed. Appx. 508
8 (9th Cir. 2005), the plaintiff brought a “42 U.S.C. § 1983 wrongful death action.”
9 Again, despite the styling of the complaint, the court analyzed the claim as a Fourth
10 Amendment excessive force claim. Gaxiola, 131 Fed. Appx. at 509. In Estate of
11 Manzo v. Cnty. of San Diego, No. 06-60, 2008 WL 4093818, at *1-*3 (S.D. Cal. Sept.
12 3, 2008), the decedent’s estate alleged causes of action for wrongful death under
13 § 1983 and state law. The court analyzed the § 1983 wrongful death claim as a Fourth
14 Amendment excessive force claim. Estate of Manzo, 2008 WL 4093818, at *1-*3.
15 What is clear from these cases is that even if the claim was described in the pleadings
16 as a wrongful death claim under section 1983, the courts only allowed such claims to
17 be maintained if they were construed as Fourth Amendment excessive force claims.
18

To the extent Plaintiffs rely on Smith v. City of Fontana, 818 F.2d 1411, 1416-17

19 (9th Cir. 1987) and Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1103 (9th Cir.
20 2014), to show otherwise, Plaintiffs’ argument fails. These cases confirm that Lopez’s
21 estate may bring a survivor action under § 1983 to vindicate his right to be free from
22 excessive force under the Fourth Amendment. They do not stand for the proposition
23 that his heirs may pursue a separate, federal cause of action for wrongful death under
24 § 1983.4
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26
27
28

4

Some of the confusion with this claim also appears to center around the difference between
wrongful death actions and survivor actions. Wrongful death actions involve claims by relatives of
the decedent to recover for their own injuries, caused by the death of their loved one. See Cal. Civ.
Proc. Code § 377.60 et seq. (West, Westlaw through 2015 Reg. Sess.). Survivor actions are based
upon the decedent’s own individual claims that he would have been entitled to file for his own injuries.
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1

In sum, the Court finds that Plaintiffs can only proceed with a wrongful death

2 cause of action under § 1983 if the Court construes it as an excessive force claim under
3 the Fourth Amendment. Even if the Court does that here, it will be of no avail because
4 the Court has already determined that Plaintiffs have failed to state a claim for
5 excessive force. Thus, Plaintiffs’ second claim for relief also must be dismissed.
6

Accordingly, the Court GRANTS Defendant Torres’s motion to dismiss

7 Plaintiffs’ wrongful death claim.
8 C.

Right of Association

9

Defendant argues that Plaintiffs fail to state a claim for right of association

10 because this action is derivative of the claims of the decedent and Plaintiffs have failed
11 to state a claim for excessive force. (ECF No. 12-1 at 10.) Alternatively, Defendant
12 contends that Agent Torres’s actions do not satisfy the shock the conscience standard
13 required under the Fourteenth Amendment. (ECF No. 12-1 at 10.) Plaintiffs counter
14
15
See Cal. Civ. Proc. Code § 377.10 et seq. Both arise under state law. The difference, essentially, is

16 a question of to whom the damages accrue.
17

However, only a survivor action may be brought in a 42 U.S.C. § 1983 action.

18

“Fourth Amendment rights are personal rights which ... may not be vicariously
asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176
(1969). Thus, the general rule is that only the person whose Fourth Amendment rights
were violated can sue to vindicate those rights. Smith v. City of Fontana, 818 F.2d
1411, 1417 (9th Cir.1987). In § 1983 actions, however, the survivors of an individual
killed as a result of an officer’s excessive use of force may assert a Fourth Amendment
claim on that individual’s behalf if the relevant state’s law authorizes a survival action.
42 U.S.C. § 1988(a); Smith, 818 F.2d at 1416-17.

19
20
21
22

Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998), as amended (Nov. 24,

23 1998). In this case, Plaintiffs allege that “all Defendants deprived Angel Lopez of his rights under the
United States Constitution to be free from the use of excessive force by law enforcement and

24 punishment without due process.” (ECF No. 1 § 111.) Thus, it is clear that the constitutional violation

upon which the section 1983 action in Plaintiffs’ second cause of action is based is use of excessive

25 force. Plaintiffs’ second claim is brought on behalf of “All Plaintiffs.” Yet if the underlying
constitutional violation alleged is excessive force, then the § 1983 claim may not be brought as a

26 wrongful death action to vindicate the rights of Lopez’s wife and children because Fourth Amendment
rights are personal to the decedent. Cf. Moreland, 159 F.3d at 369. This claim must be dismissed.

27 To the extent Plaintiffs also allege wrongful death on behalf of Lopez’s estate, that claim would be

duplicative of Plaintiffs’ first claim for relief and fails for the reasons set forth in the preceding section

28 of this Court’s order. Thus, Plaintiffs’ second cause of action must be dismissed in its entirety.
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1 that the standard for asserting a right of association claim is the lower standard of
2 deliberate indifference, which Plaintiffs contend Agent Torres’s actions met. (ECF No.
3 14 at 19.)
4

Defendant is correct that the same allegations of excessive force giving rise to

5 Lopez’s claim, via his estate, also give his spouse and children a substantive due
6 process claim based on their loss of his society and companionship. See Smith v. City
7 of Fontana, 818 F.2d 1411, 1419-20 (9th Cir. 1987) overruled on other grounds by
8 Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999). For a loss of
9 association claim to be actionable, the claim “must be based on underlying wrongful
10 governmental conduct that amounts to a constitutional deprivation.” Corales v.
11 Bennett, 488 F. Supp. 2d 975, 986 (C.D. Cal. 2007), aff'd, 567 F.3d 554 (9th Cir. 2009).
12 If the court finds that “no underlying dependent constitutional deprivation” was
13 demonstrated, the family relations substantive due process claim also must fail.
14 Corales v. Bennett, 567 F.3d 554, 569 n.11 (9th Cir. 2009). Because the Court finds
15 that Plaintiffs’ underlying Fourth Amendment excessive force claim fails, the instant
16 right of association claim also fails. See Corales, 488 F. Supp. 2d at 986 (“In the
17 absence of an underlying constitutional violation, plaintiffs’ family relations claim
18 fails”).
19

Furthermore, Plaintiffs fail to allege facts sufficient to set forth a viable

20 substantive due process cause of action. Spouses and children may assert Fourteenth
21 Amendment substantive due process claims if official conduct deprives them of their
22 liberty interest in the companionship and society of their spouse or parent. Lemire v.
23 Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013); Morales v. City of
24 Delano, 852 F. Supp. 2d 1253, 1273-74 (E.D. Cal. 2012).

The Fourteenth

25 Amendment’s Due Process Clause creates a right to be free from “executive abuse of
26 power . . . which shocks the conscience.” County of Sacramento v. Lewis, 523 U.S.
27 833, 846 (1998). “In determining whether excessive force shocks the conscience, the
28 court must first ask whether the circumstances are such that actual deliberation by the
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1 officer is practical.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (internal
2 quotations and alterations omitted). If the officer in question was faced with a time
3 frame where actual deliberation was practical, a plaintiff may establish a Fourteenth
4 Amendment violation by showing that the officer “acted with deliberate indifference.”
5 Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). Otherwise, if the officer “faced
6 an evolving set of circumstances that took place over a short time period necessitating
7 ‘fast action,’” a plaintiff must make a higher showing that the officer “acted with a
8 purpose to harm” the plaintiff. Id. at 1139 (quoting Lewis, 523 U.S. at 853). “[T]he
9 overarching test under either is whether the officer’s conduct ‘shocks the conscience.’”
10 Id. at 1139.
11

Because roughly five hours elapsed between when Pojas first contacted Agent

12 Torres and when the SWAT officer shot Lopez (see ECF No. 1 at ¶¶ 29 & 66), Agent
13 Torres had time to deliberate. Under these circumstances, the analysis proceeds under
14 the deliberate indifference standard. See Porter, 546 F.3d at 1137. A finding of
15 deliberate indifference requires that the “official knows of and disregards an excessive
16 risk.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Bd. of Cnty. Com’rs of
17 Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 415 (1997) (finding in case involving
18 excessive force allegation that showing of deliberate indifference must reflect a
19 “conscious disregard of an obvious risk”). Plaintiffs argue Agent Torres had time to
20 investigate Pojas’s claims, interview witnesses, and go to the scene of the alleged
21 kidnapping and look at the third floor window. (ECF No. 14 at 19.) While that may
22 be true, it does not follow that by failing to do so, Agent Torres consciously
23 disregarded an excessive risk.

Such a holding once again would presume the

24 foreseeable excessive risk to be that SWAT officers would use excessive force. The
25 law does not support a finding that calling in an advanced tactical team, in and of itself,
26 creates an excessive risk that the team will use more force than necessary. Therefore,
27 the Court finds that Agent Torres’s conduct did not shock the conscious. See Porter,
28 546 F.3d at 1139.
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1

Accordingly, the Court finds that Plaintiffs failed to plead sufficient facts

2 showing a Fourteenth Amendment violation and GRANTS Defendant Torres’s motion
3 to dismiss Plaintiffs’ third claim for right of association.
4 D.

Seizure Without Probable Cause

5

In his fourth claim for relief, Plaintiffs allege that Defendant seized him without

6 probable cause in violation of the Fourth Amendment. (ECF No. 1 ¶ 18.) Defendant
7 argues that the Court must dismiss this claim because Plaintiffs concede that Lopez was
8 wanted for a parole violation and probable cause is not required to lawfully arrest a
9 parolee in violation of parole. (ECF No. 12-1 at 11-12.)
10

The Fourth Amendment guarantees that “[t]he right of the people to be secure

11 in their persons, houses, papers, and effects, against unreasonable searches and
12 seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
13 supported by Oath or affirmation, and particularly describing the place to be searched,
14 and the persons or things to be seized.” U.S. Const., amend. IV. Police officers also
15 must have probable cause before making a warrantless arrest.

Ramirez v. City of

16 Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009).
17

An exception to this rule exists for parolees, however. While parolees are

18 protected against unreasonable searches and seizures, their Fourth Amendment rights
19 are not as extensive as those of other citizens. Sherman v. U.S. Parole Comm’n, 502
20 F.3d 869, 873 (9th Cir. 2007). “Under California and federal law, probable cause is not
21 required to arrest a parolee for a violation of parole. Warrantless arrests of parole
22 violators are also valid.” Id. at 884 (quoting United States v. Butcher, 926 F.2d 811,
23 814 (9th Cir. 1991)). The rationale for this is that “a parolee ‘remains under legal
24 custody,’ [so] ‘a parole arrest [is] more like a mere transfer of the subject from
25 constructive custody into actual or physical custody, rather than like an arrest of a
26 private individual who is the suspect of a crime.’” Id. (quoting United States v. Rabb,
27 752 F.2d 1320, 1324 (9th Cir. 1984) (internal quotation marks omitted)).
28

Thus, if an officer “reasonably believes a parolee is in violation of his parole, the
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1 officer may arrest the parolee.”5 Rabb, 752 F.2d at 1324, abrogated in part on other
2 grounds by Bourjaily v. United States, 483 U.S. 171 (1987). “A parole officer is not
3 required personally to effect the arrest or search of his parolee to validate the arrest or
4 search.” United States v. Butcher, 926 F.2d 811, 814 (9th Cir. 1991). The seizure
5 remains legal even if it is carried out by other officers. See id. at 814-15 (agreeing with
6 the California Court of Appeal’s determination in People v. Kanos, 14 Cal. App. 3d
7 642, 649 (2nd Distr. 1971) “that ‘[p]olice assistance properly may be requested by
8 parole agents for providing protection and for aiding in the apprehension and
9 investigation of a parole violator’”).
10

Here, Plaintiffs concede that Lopez was wanted for a parole violation. (ECF No.

11 1 ¶ 32.) As such, he was subject to seizure without probable cause. Sherman, 502 F.3d
12 at 884. For Fourth Amendment purposes, it is immaterial that Agent Torres asked the
13 San Diego Police Department to effectuate the arrest instead of doing it himself. See
14 Butcher, 926 F.2d at 814-15. The Court, therefore, finds that Plaintiffs fail to state a
15 claim for seizure without probable cause.6
16

Accordingly, the Court GRANTS Defendant Torres’s motion to dismiss

17 Plaintiffs’ fourth claim for relief.
18 E.

Due Process Claims

19

Defendant argues that Plaintiffs’ fifth and sixth causes of action for due process

20 violations must be dismissed as duplicative of their Fourth Amendment claims. (ECF
21
22
23
24

5

The same is true under California law, which expressly requires prisoners being released on
parole to be notified that they are “subject to search or seizure by a probation or parole officer or other
peace officer at any time of the day or night, with or without a search warrant or with or without cause.”
Cal. Penal Code Ann. § 3067(b)(3) (West, Westlaw through 2015 Reg. Sess.) (emphasis added).
6

To the extent Plaintiffs argue that Agent Torres had an improper purpose for the arrest

25 because he relied on Pojas’s false information, the Court finds that this claim fails as well. “[P]robable
cause to believe that a person has committed any crime will preclude a false arrest claim, even if the

26 person was arrested on additional or different charges for which there was no probable cause.” Ewing
v. City of Stockton, 588 F.3d 1218, 1230 n.19 (9th Cir. 2009) (quoting Holmes v. Village of Hoffman

27 Estate, 511 F.3d 673, 682 (7th Cir. 2007)). In this case, Lopez was wanted for being in violation of
his parole, so the officers had a lawful basis for arresting him. Because there was a lawful basis for

28 the arrest, it is irrelevant that there may have been other, invalid grounds for his arrest.
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1 No. 12-1 at 13-15.) Plaintiffs contend that Agent Torres violated Lopez’s due process
2 rights and his right to a jury trial under the Fifth Amendment, which amendment
3 Plaintiffs contend is made applicable to state actors by the Fourteenth Amendment.
4 (ECF No. 1. ¶¶ 127-29, 132.)
5

Plaintiffs’ fifth cause of action alleges that Agent Torres violated the Fifth

6 Amendment by depriving Lopez of life without due process of law. (ECF No. 1
7 ¶¶ 127-28.) “The Due Process Clause of the Fifth Amendment . . . appl[ies] only to
8 actions of the federal government-not to those of state or local governments.” Lee v.
9 City of L.A., 250 F.3d 668, 687 (9th Cir. 2001) (citing Schweiker v. Wilson, 450 U.S.
10 221, 227 (1981)). Plaintiffs have not alleged that Agent Lopez is a federal employee.
11 To the contrary, Plaintiffs’ Complaint lists Agent Torres as “a parole agent employed
12 by the California Department of Corrections and Rehabilitation, Division of Adult
13 Parole Operations.” (ECF No. 1 ¶ 9.) Because Plaintiffs have only alleged actions
14 taken by state officials7 , Plaintiffs fail to state a claim under the Fifth Amendment.
15

In his sixth cause of action, Plaintiffs allege that Agent Torres’s actions resulted

16 in the imposition of punishment without trial. (ECF No. 1 ¶ 132.) Agent Torres
17 responds that this claim must be dismissed because claims arising from excessive force
18 must be prosecuted under the Fourth Amendment, not the Fourteenth Amendment.
19 (ECF No. 12-1 at 14.) Plaintiffs counter that in light of the fact that Agent Torres
20 argues that he is not liable under the Fourth Amendment—because he was not
21 physically present to inflict the use of force—Plaintiffs are entitled to bring a
22 substantive due process claim under the Fourteenth Amendment. (ECF No. 14 at 2023 21.) In other words, if the Court finds it appropriate to dismiss Plaintiffs’ Fourth
24 Amendment claim, Plaintiffs wish instead to pursue their claim under the Fourteenth
25 Amendment.
26
27

7

The other Defendants, with the exception of Pojas who is not a government official, are all

28 alleged to be employees of the San Diego Police Department.
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1

There is no legal support for Plaintiffs’ substantive due process claim. The

2 Supreme Court made explicitly clear in Graham that:
3
4
5
6
7

all claims that law enforcement officers have used excessive
force—deadly or not—in the course of an arrest, investigatory stop, or
other “seizure” of a free citizen should be analyzed under the Fourth
Amendment and its “reasonableness” standard, rather than under a
“substantive due process” approach. Because the Fourth Amendment
provides an explicit textual source of constitutional protection against this
sort of physically intrusive governmental conduct, that Amendment, not
the more generalized notion of “substantive due process,” must be the
guide for analyzing these claims.

8 Graham, 490 U.S. at 395 (finding reversible error where appellate court reviewed an
9 excessive force claim under substantive due process standard); Reed v. Hoy, 909 F.2d
10 324, 329 (9th Cir.1989) (“under Graham, excessive force claims arising before or
11 during arrest are to be analyzed exclusively under the fourth amendment’s
12 reasonableness standard”), overruled on other grounds by Edgerly v. City & Cnty. of
13 San Francisco, 599 F.3d 946, 956 n.14 (9th Cir. 2010); see also Ward v. City of San
14 Jose, 967 F.2d 280, 285 (9th Cir. 1991) (holding that “[i]t is reversible error to give a
15 substantive due process instruction in an excessive force case after Graham”).
16 Plaintiffs cite no law in support of their effort to restyle their excessive force claim as
17 one substantive due process and the Court finds none. Accordingly, Plaintiffs sixth
18 cause of action must be dismissed.
19

For the foregoing reasons, the Court GRANTS Defendant Torres’s motion to

20 dismiss Plaintiffs’ fifth and sixth causes of action.
21 F.

Qualified Immunity

22

Alternatively, Defendant argues he is entitled to qualified immunity because the

23 challenged conduct did not violate constitutional rights. (ECF No. 12-1 at 15-18.)
24 Plaintiffs respond that Defendant is not entitled to qualified immunity because his
25 complaint alleges factual allegations supporting clearly established constitutional
26 violations. (ECF No. 14 at 21-24.)
27

Qualified immunity shields government officials performing discretionary

28 functions from liability for civil damages unless their conduct violates clearly
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1 established statutory or constitutional rights of which a reasonable person would have
2 known. Anderson v. Creighton, 483 U.S. 635, 638–40 (1987). “Qualified immunity
3 is ‘an entitlement not to stand trial or face the other burdens of litigation.’” Saucier v.
4 Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511 (1985)),
5 abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). This
6 privilege is “an immunity from suit rather than a mere defense to liability; and like an
7 absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”
8 Id. at 200–01 (quoting Mitchell, 472 U.S. at 526).

Thus, the Supreme Court

9 “repeatedly [has] stressed the importance of resolving immunity questions at the
10 earliest possible stage in litigation.” Id. at 201 (quoting Hunter v. Bryant, 502 U.S.
11 224, 227 (1991) (per curiam)).
12

In Saucier, the Supreme Court established a two-step inquiry for determining

13 whether an official is entitled to qualified immunity. Pearson, 555 U.S. at 232;
14 Saucier, 533 U.S. at 201. First, the court was directed to consider whether, “[t]aken in
15 the light most favorable to the party asserting the injury, [ ] the facts alleged show the
16 officer’s conduct violated a constitutional right.” Saucier, 533 U.S. at 201. If a
17 constitutional right would have been violated were the allegations established, the
18 Saucier court instructed lower courts to next examine whether the right was clearly
19 established such that “it would be clear to a reasonable officer that his conduct was
20 unlawful in the situation he confronted.” Id. at 201–02. If an officer makes a
21 reasonable mistake as to what the law requires—i.e. the right is not clearly
22 established—the officer is entitled to immunity. Id. at 202–03. The Supreme Court
23 subsequently determined that “while the sequence set forth [in Saucier] is often
24 appropriate, it should no longer be regarded as mandatory.” Pearson, 555 U.S. at 236.
25 Instead, lower courts may “exercise their sound discretion in deciding which of the two
26 prongs of the qualified immunity analysis should be addressed first in light of the
27 circumstances in the particular case at hand.” Id.
28

Because the Court finds that Plaintiffs’ Complaint against Agent Torres must be
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1 dismissed for other reasons, the Court declines to decide the issue of whether Agent
2 Torres is entitled to qualified immunity. See Pearson, 555 U.S. at 238 (noting that at
3 the pleading stage, “the two-step inquiry ‘is an uncomfortable exercise where ... the
4 answer [to] whether there was a violation may depend on a kaleidoscope of facts not
5 yet fully developed’”); Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir.
6 2004) (recognizing that a motion to dismiss on qualified immunity grounds puts the
7 court in the difficult position of deciding “far-reaching constitutional questions on a
8 non-existent factual record” and that while “government officials have the right ... to
9 raise ... the qualified immunity defense on a motion to dismiss, the exercise of that
10 authority is not a wise choice in every case”).
11
12

CONCLUSION
For the foregoing reasons, the court hereby GRANTS Defendant Torres’s

13 motion to dismiss (ECF No. 12). The hearing set for May 1, 2015 at 1:30 p.m. is
14 hereby VACATED and Plaintiff’s Complaint is DISMISSED WITHOUT
15 PREJUDICE as to Agent Torres only.
16

IT IS SO ORDERED.

17 DATED: April 29, 2015
18
19

HON. GONZALO P. CURIEL
United States District Judge

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24
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