Mouwakeh v. San Diego, County of et al

Filing 27

ORDER (1) Granting In Part And Denying In Part Defendants' Motion To Dismiss (Dkt # 22 ); And (2) Sua Sponte Striking Reference To Conspiracy In Paragraph 49 Of The Second Amended Complaint (Dkt # 21 ): Plaintiff will have leave to amend the SAC. Plaintiff must file an amended pleading, if at all, by 12/6/2016. Signed by Judge Thomas J. Whelan on 11/22/2016. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BANA MOUWAKEH,

Case No.: 15-CV-2372 W (KSC)
Plaintiff,

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v.

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ORDER:

COUNTY OF SAN DIEGO, et al.,

(1) GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS [DOC. 22];
AND

Defendants.

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(2) SUA SPONTE STRIKING
REFERENCE TO CONSPIRACY IN
PARAGRAPH 49 OF THE SECOND
AMENDED COMPLAINT [DOC. 21]

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Pending before the Court is Defendants’ motion to dismiss the Second Amended

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Complaint (“SAC”). [Doc. 22.] The Court decides the matter on the papers submitted

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and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons that

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follow, the Court GRANTS IN PART AND DENIES IN PART Defendants’ motion to

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dismiss, and STRIKES a reference to a conspiracy in paragraph 49 of the SAC.

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[Doc. 21.]

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15-CV-2372 W (KSC)

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I.

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BACKGROUND
Plaintiff Bana Mouwakeh filed this action on October 10, 2015. [Doc. 1.] The

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SAC alleges that during an October 11, 2013 traffic stop, she reached her hand out of her

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car and towards one of three sheriff’s deputies. (SAC [Doc. 21] ¶¶ 20, 24–25.) The

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deputies removed Mouwakeh from the car, took her to the ground, and handcuffed her.

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(Id.) She alleges that she suffered severe injuries and was arrested. (Id. [Doc. 21] ¶¶ 25–

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26.)

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The SAC alleges that the deputies retaliated against her for exercising her First
Amendment rights (SAC [Doc. 21] ¶¶ 46–50), and that they, Sheriff Bill Gore, and their

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employer the County of San Diego all violated 42 U.S.C. § 1983. (SAC [Doc. 21] ¶¶ 30–

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45, 51–71.)

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II.

LEGAL STANDARD

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A.

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The Court must dismiss a cause of action for failure to state a claim upon which

Motion to Dismiss

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relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6)

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tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51

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F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either

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for lack of a cognizable legal theory or for insufficient facts under a cognizable theory.

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Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the

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motion, a court must “accept all material allegations of fact as true and construe the

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complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty.,

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487 F.3d 1246, 1249 (9th Cir. 2007).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The Supreme Court has

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interpreted this rule to mean that “[f]actual allegations must be enough to raise a right to

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relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554

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(2007). The allegations in the complaint must “contain sufficient factual matter, accepted
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as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

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Well-pled allegations in the complaint are assumed true, but a court is not required

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to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable

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inferences. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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III.

DISCUSSION
A.

Plaintiff’s Fourth Cause of Action—Municipal Liability Generally

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Defendants move to dismiss Plaintiff’s fourth cause of action on the ground that it

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does not sufficiently allege that the deputies’ actions were the result of municipal policy,

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as required by Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694

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(1978). (Defs.’ Mot. [Doc. 22-1] 3:16–5:8.)

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“A municipality may not be held liable under [42 U.S.C. § 1983] solely because it

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employs a tortfeasor.” Bd. of Cnty. Com’rs of Bryan Cnty., Okl. v. Brown, 520 U.S.

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397, 403 (1997) (referencing Monell, 436 U.S. at 689–92). Instead, a plaintiff seeking to

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establish municipal liability under § 1983 must prove that his or her injury was the result

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of a municipal policy or custom. Id. “Locating a ‘policy’ ensures that a municipality is

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held liable only for those deprivations resulting from the decisions of its duly constituted

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legislative body or of those officials whose acts may fairly be said to be those of the

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municipality.” Id. at 403–04.

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In order to establish liability for governmental entities under Monell, a plaintiff

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must prove “(1) that [the plaintiff] possessed a constitutional right of which [s]he

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was deprived; (2) that the municipality had a policy; (3) that this policy amounts to

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deliberate indifference to the plaintiff’s constitutional right; and, (4) that the policy

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is the moving force behind the constitutional violation.”

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Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. Sch.

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Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.1997)). “Failure to train may
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amount to a policy of ‘deliberate indifference,’ if the need to train was obvious and the

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failure to do so made a violation of constitutional rights likely.” Id. (quoting City of

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Canton v. Harris, 489 U.S. 378, 390 (1989).

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The First Amended Complaint (“FAC”)’s fourth cause of action alleged a § 1983

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claim pursuant to Monell against municipal defendants without alleging a municipal

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policy or practice. (See FAC [Doc. 16] ¶¶ 51–60.) In its July 15 order, the Court

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dismissed it with leave to amend. [Doc. 20.] Now, in the SAC, Plaintiff has filed a

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virtually identical claim to the one previously dismissed. (SAC [Doc. 21] ¶¶ 51–60.)

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Once again, Plaintiff appears to rely on its incorporation of general allegations to

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construct a theory of liability—most notably paragraph 12, in the SAC’s introduction.

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Nothing of substance has changed from the FAC. Just as was the case before, the Court

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can draw no plausible inference that any policy generally alleged in the SAC’s

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introduction was the moving force behind any alleged constitutional violation. See Iqbal,

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556 U.S. at 678; Dougherty, 654 F.3d at 900.

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As the SAC’s fourth cause of action does not state a plausible theory of municipal

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liability, Defendants’ motion to dismiss it will be granted. As noted, Plaintiff had leave

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to amend this cause of action before and did not avail herself of it. Even so, she will have

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one final opportunity to plead a viable theory of municipal liability before the Court

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considers further amendment to be an exercise in futility. See Fed. R. Civ. 15(a)(2)

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(“The court should freely give leave when justice so requires.”).

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Plaintiff’s Fifth Cause of Action—Failure to Train

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B.

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Plaintiff alleges her fourth and fifth causes of action against Sheriff Gore, in both

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his individual and his official capacities, and also against the County of San Diego. (SAC

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[Doc. 21] ¶¶ 9, 51–71.) As discussed above, the fourth cause of action will be dismissed

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on another basis. Defendants move to dismiss the claims against the Sheriff on the

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grounds that Plaintiff has alleged insufficient facts to support a claim against him in an

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individual capacity, and that her claims against him in an official capacity duplicate those
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she asserts against the County of San Diego. (See Defs.’ Mot. [Doc. 22-1] 5:9–8:15.)

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Plaintiff does not oppose the dismissal of her claims against Sheriff Gore. (Pl.’s Opp’n

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[Doc. 25] 6:26–28.)

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As Plaintiff does not oppose the dismissal of her fifth cause of action against

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Sheriff Gore, the motion to dismiss it will be granted with leave to amend. See Fed. R.

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Civ. 15(a)(2) (“The court should freely give leave when justice so requires.”).

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C.

Plaintiff’s First and Second Causes of Action—Unlawful Arrest, and
Excessive Force

Defendants next move to dismiss Plaintiff’s first and second causes of action, for

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unlawful seizure, arrest, and detention, and for excessive force, respectively. (Defs.’ Mot.

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[Doc. 22-1] 8:16–10:24.)

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As to the first cause of action, for unlawful arrest, Defendants argue that probable

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cause existed to arrest Plaintiff for violation of California Penal Code § 243(b), which

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proscribes battery on a peace officer, and for violation of California Penal Code § 148(a),

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which proscribes resisting and delaying an officer. (Defs.’ Mot. [Doc. 22-1] 8:16–9:16.)

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Assuming true the facts alleged in the SAC and construing them in Plaintiff’s favor, as

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the Court must for the purpose of this motion, Vasquez, 487 F.3d at 1249, one cannot

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conclude that probable cause existed to arrest Plaintiff for these offenses. As to the

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battery charge, Plaintiff alleges that she did not physically touch Officer Rosas prior to

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her arrest—only that she reached towards him during the traffic stop. (SAC [Doc. 21] ¶

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24.) This may have been an unwise course of action, but the facts alleged do not rise to

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the level of battery as defined by California law. Cal. Penal Code § 242 (“A battery is

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any willful and unlawful use of force or violence upon the person of another.”). And

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based on the facts alleged in the SAC, there is no basis to conclude for the purpose of this

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motion that probable cause existed to arrest Plaintiff for resisting and delaying an officer

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in violation of Cal. Penal Code § 148.

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As to the second cause of action, Defendants argue that officers used reasonable

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force in arresting Plaintiff. (Defs.’ Mot. [Doc. 22-1] 9:17–10:24.) This contradicts

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Plaintiff’s allegations. (See SAC [Doc. 21] ¶¶ 24–25.) The SAC alleges that when

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Plaintiff was argumentative at a traffic stop and reached out of a vehicle toward a deputy

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with her finger, deputies did her so much harm in effectuating her arrest that she required

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surgery to repair her knee. (See id.) The SAC further alleges that officers then tightened

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handcuffs around Plaintiff’s wrists to the point at which she suffered numbness for

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months afterward. (Id.) The Court must take these factual allegations as true for the

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purpose of this motion to dismiss. See, e.g., Vasquez, 487 F.3d at 1249. This level of

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force would not appear reasonable under the circumstances.
Defendants’ motion to dismiss Plaintiff’s first and second causes of action will be
denied.

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Plaintiff’s Third Cause of Action—First Amendment Retaliation

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D.

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Defendants next move to dismiss Plaintiff’s third cause of action, construing it as a

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conspiracy claim. (Defs.’ Mot. [Doc. 22-1] 11–12.) Plaintiff opposes, contending that

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there is no conspiracy claim in the SAC. (Pl.’s Opp’n [Doc. 25] 3:13–14 (arguing that

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the “alleged conspiracy cause of action . . . does not exist and has not been pleaded”).)

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Paragraph 49 of the SAC alleges as follows:

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Those SDSO Officer Defendants named in this cause of action who conspired

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with, verbally encouraged, and /or aided and abetted, and/or witnessed SDSO

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Deputy ROSAS and were in a position to stop the violation of Plaintiff’s rights but

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failed to do so are also liable for the violation of Plaintiff[’s] First Amendment

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rights.

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(SAC [Doc. 21] ¶ 49.) This is puzzling because the third cause of action is not captioned

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as a conspiracy cause of action, and the SAC also alleges that the only three deputies

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named in this cause of action were all physically involved the incident in question. (See

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SAC [Doc. 21] ¶¶ 24–25, 46–50.)
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Defendants have not demonstrated Plaintiff’s third cause of action fails without

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paragraph 49’s reference to a conspiracy. Accordingly, their motion to dismiss this cause

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of action will be denied. Still, as Plaintiff concedes that her third cause of action does not

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contain a conspiracy claim, the Court will sua sponte strike the reference to a conspiracy

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from paragraph 49 of the SAC. See Fed. R. Civ. P. 12(f) (“The court may strike from a

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pleading . . . any . . . redundant, immaterial, [or] impertinent . . . matter. The court may

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act . . . on its own[.]”). Specifically, the Court strikes the phrase, “conspired with,” in

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paragraph 49 of the SAC. Plaintiff will have leave to amend her third cause of action.

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See Fed. R. Civ. 15(a)(2) (“The court should freely give leave when justice so requires.”).

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IV.

CONCLUSION & ORDER
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED IN

PART AND DENIED IN PART.
Specifically, Defendants’ motion to dismiss Plaintiff’s fourth cause of action is

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granted with leave to amend. This will be Plaintiff’s final opportunity to amend this

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cause of action.

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Defendants’ motion to dismiss Plaintiff’s fifth cause of action against Sheriff Gore
is granted with leave to amend.
Defendants’ motion to dismiss Plaintiff’s first and second causes of action is
denied.

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Defendants’ motion to dismiss Plaintiff’s third cause of action is denied.

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The Court sua sponte STRIKES the phrase “conspired with,” in paragraph 49 of

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the SAC.
Plaintiff will have leave to amend the SAC, as discussed above. Plaintiff must file
an amended pleading, if at all, by Tuesday, December 6, 2016.

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IT IS SO ORDERED.
Dated: November 22, 2016

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