Caputo v. City of San Diego Police Dept. et al

Filing 119

ORDER: (1) granting Defendant Sheriff Gore's motion to quash; and (2) granting Defendant County of San Diego and Defendants City of San Diego, Shelley Zimmerman, Sergeant Andrew Feloows, and Frank Bigler's motions to dismiss. Plaintiff must file her amended complaint within twenty-one (21) days from the date of this Order. Signed by Judge Anthony J. Battaglia on 8/27/2018. (jpp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ROSE MARIE CAPUTO,

Case No.: 16-cv-00943-AJB-BLM
Plaintiff,

12
13
14

ORDER:

v.
CITY OF SAN DIEGO POLICE
DEPARTMENT, THE CITY OF SAN
DIEGO POLICE COMMISSIONER, et.
al.,

15
16
17

(1) GRANTING DEFENDANT
SHERIFF GORE’S MOTION TO
QUASH; AND
(2) GRANTING DEFENDANT
COUNTY OF SAN DIEGO AND
DEFENDANTS CITY OF SAN
DIEGO, SHELLEY ZIMMERMAN,
SERGEANT ANDREW FELLOWS,
AND FRANK BIGLER’S MOTIONS
TO DISMISS

Defendants.

18
19
20
21

(Doc. Nos. 94, 95, 101)

22
23

Pending before the Court is Defendant Sheriff Gore’s motion to quash service of

24

summons, (Doc. No. 95), Defendant County of San Diego’s motion to dismiss, (Doc. No.

25
26

94), and Defendants City of San Diego, Chief Shelley Zimmerman, Sergeant Andrew
Fellows, and Officer Frank Bigler’s motion to dismiss, (Doc. No. 101). Plaintiff Rose

27
28
1
16-cv-00943-AJB-BLM

1

Marie Caputo opposes all three motions. (Doc. Nos. 108, 109, 110, 111.)1 Pursuant to Civil

2

Local Rule 7.1.d.1, the Court finds the motions suitable for determination on the papers

3

and without oral argument. For the reasons set forth more fully below, the Court GRANTS

4

Defendant Gore’s motion to quash and GRANTS both motions to dismiss.

5

I.

BACKGROUND

6

The following facts are taken from Plaintiff’s operative complaint and are construed

7

as true for the limited purpose of resolving the instant motions to dismiss. See Brown v.

8

Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013).

9

The instant matter revolves around Plaintiff’s civil action for damages pursuant to

10

42 U.S.C. § 1983. (Doc. No. 91 at 2.)2 Plaintiff alleges that on March 14, 2015, at

11

approximately 9:00 p.m., she was stopped by Defendant Fellows. (Id. at 3.) When Fellows

12

exited his vehicle, he began to yell at Plaintiff from approximately ten to twelve feet away.

13

(Id.) Defendant Fellows then approached Plaintiff’s vehicle and demanded that she put her

14

hands out the window and then asked Plaintiff if she was in possession of any sharp objects.

15

(Id.) Plaintiff states that she responded to Fellows in a calm manner and informed him that

16

she had no weapons on her person. (Id.) Fellows then proceeded to open Plaintiff’s glove

17

box without explaining why she had been stopped. (Id.) Plaintiff asserts that she was being

18

pursued as she had just left her husband’s home where they had engaged in a “heated

19

argument.” (Id. at 4.)

20

During the remainder of the stop, Plaintiff alleges that Fellows yelled at her, gave

21

her various commands, and then despite Plaintiff’s calm demeanor, grabbed her left arm

22

and pulled her out of her car with such force that she did a somersault in the air and landed

23

on the street on her shoulder. (Id. at 6.) Plaintiff’s body was then pushed into the asphalt

24

as Fellows cuffed her hands behind her back. (Id.) Plaintiff contends that her hands were

25
26
27
28

1

The Court notes that ECF Document number 109 is an exact replica of document number
111. (Doc. Nos. 109, 111.)
2
Page numbers refer to the CM/ECF page number and not the page number listed on the
original document.
2
16-cv-00943-AJB-BLM

1

so tightly cuffed that she was placed in a state of shock where she began to shake and cry,

2

and then lost control of her bladder. (Id.)

3

After Plaintiff was “thrown” into the back of a police car, Defendant Frank Bigler

4

arrived on the scene and informed Plaintiff that she was being arrested for Domestic

5

Battery. (Id. at 6–7.) In total, Plaintiff alleges that she spent around twenty-five minutes in

6

the back of the vehicle suffering from increasing pain from back and neck spams. (Id. at

7

7.) Due to the pain she was experiencing, Plaintiff informed the officers that she was

8

federally disabled and then asked that her cuffs be loosened as she was not being

9

combative. (Id.) However, her request was denied. (Id.) Plaintiff was then taken to a

10

holding cell, where she was provided a mediocre medical evaluation. (Id.)

11

While in the holding cell, Plaintiff states that her rights were not read to her, she was

12

accused of having been arrested for a DUI, and she suffered from tremendous fear and

13

trepidation. (Id. at 8.) Furthermore, Plaintiff was denied her right to a phone call and

14

officers ignored her requests to use the restroom. (Id. at 9.) Explicitly, Plaintiff claims that

15

she waited for over an hour in a significant amount of pain to use the restroom, however

16

due to a bladder condition, as her requests were being disregarded, Plaintiff had no other

17

choice but to urinate all over the holding cell floor. (Id. at 9–10.)

18

Plaintiff was then transferred to the Scripps Mercy Emergency Room. (Id. at 10–

19

11.) While at the emergency room, due to the unnatural angle of her hands in the handcuffs,

20

Plaintiff continued to suffer incessant spasms. (Id. at 11.) Despite this, Defendant Bigler

21

refused to change the position of her handcuffs. (Id.) Moreover, Plaintiff alleges that she

22

received below standard medical treatment from the hospital staff, that Defendants

23

interfered with her course of treatment and made false allegations to her doctor, that she

24

was discharged precipitously, and that not a single medical staff personnel attempted to

25

help her when she yelled out in pain. (Id. at 11, 13–14.) After Plaintiff was discharged, she

26

claims she was hog tied outside of the hospital and then driven to Rosecrans County

27

Psychiatric Hospital. (Id. at 15.)

28

While at the psychiatric hospital, Plaintiff was screened for suicide and homicidal
3
16-cv-00943-AJB-BLM

1

ideation. (Id.) Plaintiff was then referred back to the Vista Detention Center. (Id.) Upon

2

arriving at the detention center, Plaintiff did not receive an examination, was strip searched,

3

and then placed into a cell where she was forced to wear a safety smock that did not cover

4

her genitalia. (Id. at 15–16.) Additionally, Plaintiff describes the cell as frigidly cold, and

5

having blaring bright lights and a putrid stench. (Id. at 16.) Plaintiff spent the next thirty-

6

six hours in this safety cell, despite the fact that she was still suffering from back and neck

7

pain, anxiety, chest pain, headaches, and spasms. (Id.)

8

In sum, Plaintiff brings this lawsuit alleging that her Fourth, Eighth, and Fourteenth

9

amendments were violated, she was denied her substantive due process rights, that the

10

officers were following an “unlawful official policy, practice or custom,” Defendants were

11

deliberately indifferent to her health and safety, “malicious intent,” cruel and unusual

12

punishment, unequal access to the appropriate level of accommodation based on gender, a

13

cause of action under the Americans with Disabilities Act (“ADA”), and negligence. (See

14

generally Doc. No. 91.)

15

II.

PROCEDURAL BACKGROUND

16

The procedural posture of this case is incredibly intricate. The Court notes that

17

Plaintiff filed four complaints pre-service—the initial complaint was filed on April 19,

18

2016. (Doc. Nos. 1, 4, 6, 15, 17.) Thereafter, on October 19, 2016, Plaintiff paid the filing

19

fee after two unsuccessful attempts to proceed in forma pauperis. (Doc. Nos. 2, 7, 9, 13,

20

19.)

21

Beginning in July of 2016, Plaintiff endeavored to file ex parte letters, motions, and

22

additional amended complaints that were procedurally defective. (See Doc. Nos. 21–23,

23

25.) The Court then permitted Plaintiff leave to file her third amended complaint on June

24

21, 2017, in an effort to serve an operative pleading on Defendants within the confines of

25

Federal Rule of Civil Procedure 4. (Doc. No. 26.) On July 13, 2017, Plaintiff executed and

26

returned the summons for all of the Defendants. (Doc. Nos. 28–34.)

27

Subsequently, the Court was then again faced with several procedurally defective

28

filings that were all noticed as “Document Discrepancies.” (See Doc. Nos. 45, 46, 48.)
4
16-cv-00943-AJB-BLM

1

Among the documents was Plaintiff’s motion for leave to amend her third amended

2

complaint filed on September 8, 2017. (Doc. No. 49.) Based upon this filing, the Court

3

vacated the hearing dates on Defendants’ motions to dismiss and motion to quash. (Doc.

4

Nos. 35, 36, 39, 52.)

5

The Court was then again presented with another group of “Document

6

Discrepancies” filed by Plaintiff. (Doc. Nos. 53, 55, 57, 61, 62, 64, 70.) Thereafter, Plaintiff

7

filed a motion for leave to file a fourth amended complaint, (Doc. No. 71), and on

8

November 20, 2017, Plaintiff attempted to file another motion to amend, which was

9

rejected by the Court, (Doc. Nos. 81, 83). On February 2, 2018, Plaintiff filed her operative

10

complaint. (Doc. No. 91.) The instant motions, the two motions to dismiss and motion to

11

quash subsequently followed. (Doc. Nos. 94, 95, 101.) The Court notes that on April 12,

12

2018, the Court issued an order prohibiting Plaintiff from calling chambers unless she was

13

requesting a motion hearing date. (Doc. No. 107 at 2–3.)

14

III.

LEGAL STANDARD

15

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s

16

complaint and allows a court to dismiss a complaint upon a finding that the plaintiff has

17

failed to state a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d

18

729, 732 (9th Cir. 2001). “[A] court may dismiss a complaint as a matter of law for (1) lack

19

of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim.”

20

SmileCare Dental Grp. v. Delta Dental Plan of Cal. Inc., 88 F.3d 780, 783 (9th Cir. 1996)

21

(citations and internal quotation marks omitted). However, a complaint will survive a

22

motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on

23

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this

24

determination, a court reviews the contents of the complaint, accepting all factual

25

allegations as true, and drawing all reasonable inferences in favor of the nonmoving party.

26

Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir.

27

2007).

28
5
16-cv-00943-AJB-BLM

1

Notwithstanding this deference, the reviewing court need not accept “legal

2

conclusions” as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for a

3

court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .” Assoc.

4

Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526

5

(1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume

6

their veracity and then determine whether they plausibly give rise to an entitlement to

7

relief.” Iqbal, 556 U.S. at 679.

8

IV.

DISCUSSION

9

A.

Defendant Gore’s Motion to Quash

10

Gore contends that service should be quashed because (1) the complaint served upon

11

him varied in content and form to the complaint filed with the Court; (2) at the time there

12

was no basis to include him as he was not a named defendant; and (3) the service was

13

defective as it was not personally served upon him. (See generally Doc. No. 95-1.) In

14

opposition, Plaintiff asserts that Gore is a culpable party to this action as a representative

15

of the deputies and staff at Vista Detention Facility. (Doc. No. 108 at 2.)

16

A Federal Rule of Civil Procedure 12(b)(5) motion is the proper vehicle for

17

challenging “insufficient service of process[.]” Fed. R. Civ. P. 12(b)(5). This serves to

18

challenge the validity of the actual method or manner of service of process. “Objections to

19

the validity of service of process must be specific and must point out in what manner the

20

plaintiff has failed to satisfy the requirements for proper service.” Bovier v. Bridgepoint

21

Education/Ashford University, No. 3:17-cv-01052-GPC-JMA, 2017 WL 4922978, at *1

22

(S.D. Cal. Oct. 30, 2017).

23

Once service of process is properly challenged, “the party on whose behalf [service]

24

is made must bear the burden of establishing its validity.” Aetna Business Credit, Inc. v.

25

Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981); Brockmeyer

26

v. May, 383 F.3d 798, 801 (9th Cir. 2004). A district court has broad discretion to either

27

dismiss an entire action for failure to effect service or to quash the defective service and

28
6
16-cv-00943-AJB-BLM

1

permit re-service. See Jones v. Automobile Club of S. Cal., 26 F. App’x 740, 742 & n.7

2

(9th Cir. 2002).

3

Here, the proof of service illustrates that Gore’s summons was served on Janet A.

4

Sumabat on July 10, 2017. (Doc. No. 33 at 4.) Rule 4 requires that service be completed

5

by (1) “delivering a copy of the summons and of the complaint to the individual

6

personally;” (2) “leaving a copy of each at the individual’s dwelling[;]” or (3) “delivering

7

a copy of each to an agent authorized by appointment or by law to receive service of

8

process.” Fed. R. Civ. P. 4(e). In addition, service may be satisfied by “following state law

9

. . . in the state where the district court is located or where service is made[.]” Id. at (e)(1).

10

California state law states that “[i]f a copy of the summons and complaint cannot with

11

reasonable diligence be personally delivered to the person to be served, a summons may

12

be served by leaving a copy of the summons and complaint at the person’s . . . usual place

13

of business[.]” Cal. Code of Civ. Proc. § 415.20(b).

14

Plaintiff’s opposition brief does not attempt to argue that Janet Sumabat is an agent

15

authorized to receive service of process on behalf of Gore nor has Plaintiff addressed any

16

of the deficiencies pointed out by Gore in his motion. (Doc. No. 108.) Most notably,

17

Plaintiff has not demonstrated that she attempted to personally serve Defendant Gore with

18

“reasonable diligence” before resorting to substituted service. Accordingly, Plaintiff has

19

not satisfied her burden and thus Defendant Gore’s motion to quash is GRANTED. See

20

GayDays, Inc. v. Master Entm’t, Inc., No. CV 07-6179 ABC (JWJx), 2008 WL 11336945,

21

at *2 (C.D. Cal. Mar. 6, 2008).

22

The Court notes that Gore requests that the service be quashed and that the action be

23

dismissed as to him. (Doc. No. 95-1 at 4.) However, “Rule 4 is a flexible rule that should

24

be liberally construed so long as a party receives sufficient notice of the complaint.” United

25

Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.

26

1984). Taking this into consideration, as well as Plaintiff’s pro se status, the Court finds

27

that Plaintiff should be granted the opportunity to properly serve Defendant Gore.

28

///
7
16-cv-00943-AJB-BLM

1

B.

Defendants’ Motions to Dismiss

2

The Court addresses both the County of San Diego (“the County”) and Defendants

3

City of San Diego, Shelley Zimmerman, Andrew Fellows, and Frank Bigler’s (collectively

4

referred to as “City Defendants”) motions to dismiss together as they make comparatively

5

the same arguments. (Doc. Nos. 94, 101.) Specifically, both the County and City

6

Defendants assert that dismissal is proper based upon Rules 8 and 12(b)(6) of the Federal

7

Rules of Civil Procedure. (Doc. No. 94-1 at 7–9; Doc. No. 101-1 at 8–10 (see Zixiang Li

8

v. Kerry, 710 F.3d 995, 998 (9th Cir. 2013) (“Rule 12(b)(6) is read in conjunction with

9

Rule 8(a).”)).) The Court agrees with both the County and City Defendants.

10

Rule 8 states that “[a] pleading that states a claim for relief must contain . . . a short

11

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

12

P. 8(a)(2). Here, Plaintiff’s sixty-eight page complaint is verbose, convoluted, and

13

produces causes of action that are legally groundless. (See generally Doc. No. 91.)

14

Furthermore, though the Court is able to decipher the main foundation of Plaintiff’s claims,

15

the operative complaint muddies the waters by utilizing irrelevant case law and includes a

16

slew of immaterial factual allegations while also grouping Defendants together in an

17

ambiguous manner. This type of pleading warrants dismissal based upon Rule 8. See

18

McHenry v. Renne, 84 F.3d 1172, 1176 (9th Cir. 1996) (“The complaint still reads like a

19

magazine story instead of a traditional complaint . . . Instead, each claim says ‘defendants’

20

conduct violated various rights of plaintiffs, without saying which defendants.”); see also

21

Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (“Rule 8(a)

22

has been held to be violated by a pleading that was needlessly long, or a complaint that was

23

highly repetitious, or confused, or consisted of incomprehensible rambling.”) (citation and

24

internal quotation marks omitted); Sparling v. Hoffman Construction Co., Inc., 864 F.2d

25

635, 640 (9th Cir. 1988) (noting that a complaint that contains factual elements of a cause

26

of action scattered throughout the complaint and not organized into a “short and plain

27

statement of the claim” may be dismissed for failure to satisfy Rule 8(a)).

28
8
16-cv-00943-AJB-BLM

1
2
3
4

In addition, the Court finds dismissal proper under Rule 12(b)(6). For Plaintiff’s
benefit, the Court briefly analyzes the various deficiencies present in the claims.
1. Plaintiff’s First, Second, Fifth, and Sixth causes of action are improper
statements of the law and insufficiently pled.

5

Plaintiff’s first cause of action for “Excessive Force” is described as “variously

6

grounded” in the Fourth, Eighth, and Fourteenth Amendments. (Doc. No. 91 at 17.) This

7

type of pleading is insufficient as the Supreme Court has clearly stated that assessing claims

8

under 42 U.S.C § 1983 begins with identifying the precise constitutional right allegedly

9

infringed upon. See Graham v. Connor, 490 U.S. 386, 394 (1989).

10

Moreover, the Fourth, Eighth, and Fourteenth Amendments all require varying

11

standards and elements when applied to excessive force claims. For example, a court

12

considers the following factors in determining whether force was excessive in eighth

13

amendment claims against prison officials: “(1) the need for application of force; (2) the

14

extent of injuries; (3) the relationship between the need for force and the amount of force

15

used; (4) the nature of the threat reasonably perceived by prison officers; and (5) efforts

16

made to temper the severity of a forceful response.” Lyons v. Busi, 566 F. Supp. 2d 1172,

17

1186–87 (E.D. Cal. 2008). In comparison, in the context of investigatory stops and arrests,

18

excessive force claims are properly characterized as invoking the protection of the Fourth

19

Amendment. Graham, 490 U.S. at 394. Specifically, Fourth Amendment excessive force

20

claims are analyzed under a reasonableness standard that balances the “nature and quality

21

of the intrusion on the individual’s Fourth Amendment interests against the countervailing

22

governmental interests at stake.” Id. at 396 (citation and internal quotation marks omitted).

23

Here, Plaintiff’s first cause of action does not address the relevant legal standard,

24

cites irrelevant authority, and intermingles conclusory legal allegations under different

25

theories. For example, Plaintiff cites to the standard for deadly force, cruel and unusual

26

punishment, negligent affliction of emotional distress, and unnecessary and wanton

27

infliction of pain. (Doc. No. 91 at 21.) The remainder of the allegations under this cause of

28
9
16-cv-00943-AJB-BLM

1

action then hop between her stop, her arrest, the injuries she purportedly sustained during

2

her arrest, and her experience at the emergency room. (Doc. No. 91 at 17–27.)

3

Based off of the foregoing, dismissal of Plaintiff’s first cause of action is appropriate

4

as it does not identify the specific constitutional right that was purportedly infringed, and

5

makes confusing yet conclusory allegations that obfuscate the legal theory being asserted.

6

Plaintiff’s second cause of action is asserted under substantive due process, (Id. at

7

27), and Plaintiff’s fifth cause of action is asserted under the Eighth Amendment’s

8

protection against cruel and unusual punishment, (Id. at 46). However, similar to the above,

9

the context and factual allegations supporting both causes of action are improperly pled.

10

As to substantive due process, “[g]overnment officials are, of course, justified in using

11

force—even deadly force—in carrying out legitimate governmental functions. But, when

12

the force is excessive, or used without justification or for malicious reasons, there is a

13

violation of substantive due process.” Sinaloa Lake Owners Ass’n v. City of Simi Valley,

14

882 F.2d 1398, 1408 (9th Cir. 1989), overruling on other grounds by Armendariz v.

15

Peanman, 75 F.3d 1311 (9th Cir. 1996). Presently, Plaintiff alleges that “with all due

16

respect, the use of ‘Excessive Force’ negated upfront for me, the opportunity to move

17

through the phases of Due Process as they related to my case, as I was deprived of my

18

‘liberty,’ and of the opportunity to interface with the law procedurally in a ‘normal

19

course[.]’” (Doc. No. 91 at 28.) Plaintiff then resorts to re-stating the events that supposedly

20

occurred at the Vista Detention Center. (Id. at 29.) These statements as well as the

21

remainder of the allegations under this cause of action are incomprehensible and thus

22

warrant dismissal.

23

Plaintiff’s assertions to support her cruel and unusual punishment claim are similarly

24

incoherent. Plaintiff points to Defendant Bigler’s interference with her medical care, (Id.

25

at 46), then goes on to depict the safety cell she was housed in, and references “Standards

26

of Care,” claims based on her gender, and “reasonable accommodation” requests, (Id. at

27

47). Additionally, the majority of the allegations group Defendants together and refer to

28

them as simply “Vista county jail officials.” (Id.) This type of group pleading is
10
16-cv-00943-AJB-BLM

1

impermissible. See GenProbe, Inc. v. Amoco Corp., Inc., 926 F. Supp. 948, 960–62 (S.D.

2

Cal. 1996).

3

Consequently, dismissal of Plaintiff’s substantive due process and eighth

4

amendment claims is proper as they lack a cognizable legal theory and are insufficiently

5

pled. SmileCare Dental Grp., 88 F.3d at 783.

6

As to Plaintiff’s sixth cause of action for “unequal access to appropriate level of

7

accommodation,” it is uncertain what legal theory or constitutional right Plaintiff is putting

8

forward. Plaintiff argues that she was denied the right to be free of prolonged detainment

9

because of a low risk classification, and then goes on to state that this constitutes

10

discrimination based on gender. (Doc. No. 91 at 50.) However, the essence of an equal

11

protection claim is that a plaintiff has been denied protection of the laws that are otherwise

12

available to similarly situated persons. City of Cleburne, Tex. v. Cleburne Living Center,

13

473 U.S. 432, 439 (1985). Moreover, the level of scrutiny under which an equal protection

14

claim is analyzed varies depending on what protected characteristics are implicated. See

15

Mississippi University for Women v. Hogan, 458 U.S. 718, 721–22 (1982) (classifications

16

based on gender fail unless they are substantially related to a sufficiently important

17

governmental interest).

18

Presently, Plaintiff has not alleged any facts about how similarly situated persons

19

are treated in relation to the law challenged. Moreover, the complaint includes convoluted

20

allegations such as referring to “Equal Justice Under Law,” the “harrows of hell,” Monell

21

claims, low risk classifications adopted per protocol, and Title 15 C.R.R. (Doc. No. 91 at

22

48–51.) Thus, as Plaintiff has intermingled numerous unrelated and insufficiently

23

articulated legal theories, dismissal of this cause of action is justified.

24

These abovementioned shortfalls leave this Court and the Defendants in this case

25

without sufficient allegations to proceed. Consequently, Plaintiff’s first, second, fifth, and

26

sixth causes of action are DISMISSED. See Adams v. Johnson, 355 F.3d 1179, 1183 (9th

27

Cir. 2004) (“[C]onclusory allegations of law and unwarranted inferences are insufficient

28

to defeat a motion to dismiss.”); see also McHenry, 84 F.3d at 1177–80 (upholding a Rule
11
16-cv-00943-AJB-BLM

1

8 dismissal of a complaint that was “argumentative, prolix, replete with redundancy, and

2

largely irrelevant.”); Flores v. EMC Mortg. Co., 997 F. Supp. 2d 1088, 1103 (E.D. Cal.

3

2014) (concluding that a Rule 8 dismissal was warranted based on a “rambling complaint

4

[that] lacks facts of defendants’ specific wrongdoing to provide fair notice as to what each

5

defendant is to defend.”).

6
7

2. Plaintiff’s Third, Third (sic), and Fourth causes of action fail to sufficiently
state claims upon which relief may be granted.

8

Plaintiff’s third cause of action is under a theory of “Unlawful Official Policy,

9

Practice or Custom.” (Doc. No. 91 at 30.) A plaintiff seeking to hold municipal entities

10

liable under 42 U.S.C § 1983 must show their injury was caused by an official policy or

11

custom—not merely because the municipality employed a tortfeasor. See Los Angeles Cty.,

12

Cal. v. Humphries, 562 U.S. 29, 35–36 (2010). Presently, Plaintiff only makes conclusory

13

statements about a “policy” and “ineffective training.” (Id. at 30–33.) Plaintiff then alleges

14

that only “an examination of policies or a lack thereof, as well as training records and

15

monitoring tools will adequately reveal the Supervisory Culpability of Sherriff William

16

Gore . . . to adopt appropriate policies and strategies to ensure the likelihood that such

17

violations of rights would not occur . . . .”). (Id. at 32–33.)

18

The Court notes that in the past, the Ninth Circuit has not required parties “to provide

19

much detail at the pleading stage regarding such a policy or custom. In this circuit, a claim

20

of municipal liability under § 1983 is sufficient . . . based on nothing more than a bare

21

allegation that the individual officers’ conduct conformed to official policy, custom, or

22

practice.” Hernandez v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (citation and

23

internal quotation marks omitted). However, even with this limited pleading standard,

24

Plaintiff’s allegations are too prolix and long-winded to present a legally cognizable claim.

25

For instance, as currently pled, the Court is left in the dark as to the nature of the alleged

26

policy, custom or practice i.e., the Court is unsure if the policy is related to use of excessive

27

force on individuals during a traffic stop, use of force on disabled individuals, treatment of

28

disabled individuals in holding cells, or seeking medical assistance for individuals.
12
16-cv-00943-AJB-BLM

1

Moreover, to the extent that Plaintiff is attempting to allege a failure to train, the broad

2

conclusion mentioned above does not sufficiently state a plausible Monell claim.

3

Specifically, the complaint does not explain how the training with respect to arresting and

4

treating individuals with disabilities was deficient or inadequate. See McFarland v. City of

5

Clovis, 163 F. Supp. 3d 798, 803 (E.D. Cal. 2016).

6

Similarly, Plaintiff’s cause of action for “deliberate indifference” lacks a cognizable

7

legal theory. Plaintiff points to Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997), and

8

Farmer v. Brennan, 511 U.S. 825 (1994), for the proposition that actions of employees in

9

detention facilities may give rise to liability under a theory of deliberate indifference if they

10

intentionally refuse to respond to an inmate’s complaints, or delay medical care for a

11

known injury. (Doc. No. 91 at 33–34.) However, those cases addressed the potential

12

viability of deliberate indifference claims under the Eighth Amendment’s protection

13

against cruel and unusual punishment. See Gutierrez, 111 F.3d at 1365; see also Farmer,

14

511 U.S. at 828. Here, Plaintiff has not pled any facts to indicate there is any basis to

15

proceed under the Eighth Amendment. See Whitley v. Albers, 475 U.S. 312, 318 (1986)

16

(explaining the Eighth Amendment’s protections were designed to protect those who are

17

convicted of crimes, and applies “only after the State has complied with the constitutional

18

guarantees traditionally associated with criminal prosecutions.”). Indeed the complaint

19

clearly states that Plaintiff was “released without any charges[.]” (Doc. No. 91 at 17.)

20

However, if Plaintiff is attempting to assert a claim of liability for nonfeasance of a

21

municipality or government actor, the complaint has failed to clearly state such a claim. “A

22

plaintiff who sets forth a Monell claim against an entity defendant must show that the entity

23

acted with deliberate indifference to the constitutional rights of the plaintiff in adhering to

24

a policy or custom or by acts of omission.” Gonzalez v. Cty. of Merced, 289 F. Supp. 3d

25

1094, 1112 (E.D. Cal. 2017). Thus, the objective deliberate indifference standard is met

26

when a “plaintiff [] establish[es] that the facts available to [entity] policymakers put them

27

on actual or constructive notice that the particular omission is substantially certain to result

28

in the violation of the constitutional rights of their citizens[.]” Castro v. Cty. of Los Angeles,
13
16-cv-00943-AJB-BLM

1

833 F.3d 1060, 1076 (9th Cir. 2016). As discussed above, Plaintiff has not adequately

2

alleged a policy, custom or omission. Thus, this cause of action fails. See Clouthier v. Cty.

3

of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010), overruled on other grounds by 833

4

F.3d 1060 (9th Cir. 2016) (explaining that municipal liability cannot be premised on

5

respondeat superior and it is not sufficient for a plaintiff to merely point to something that

6

the city could have done to prevent the incident).

7

Plaintiff’s fourth cause of action is entitled “MALICIOUS INTENT,” and defines

8

malicious intent as “the intent, without just cause or reason, to commit a wrongful act that

9

will result in harm to another. It is the intent to harm or do some evil purpose.” (Doc. No.

10

91 at 42.) So far as this Court is able to determine, Plaintiff is citing a dictionary definition

11

of the term “malice” to frame a legal theory on which relief might be granted. See

12

MALICE, Black’s Law Dictionary (10th ed. 2014) (defining malice as “1. The intent,

13

without justification or excuse, to commit a wrongful act.”). Although malice arises in

14

many areas of the law, this Court is unable to find and Plaintiff has failed to clearly state

15

any legal cause of action on which one may recover for the mere presence of a malicious

16

mental state. See Cal. Penal Code § 187 (defining murder as “the unlawful killing of a

17

human being . . . with malice aforethought.”). Thus, this claim is groundless.

18

In sum, Plaintiff’s deliberate indifference and official policy or custom causes of

19

action are DISMISSED. As to Plaintiff’s “Malicious Intent” claim, as there is no legal

20

theory to support such a claim, this action is DISMISSED WITH PREJUDICE.

21

3. Plaintiff’s Seventh cause of action under Title II of the Americans With

22

Disabilities Act and the Rehabilitation Act fail to address the relevant legal

23

standard.

24

A claim under Title II requires that a plaintiff prove (1) they are a qualified individual

25

with a disability, (2) they were “excluded from participation in or denied the benefits of a

26

public entity’s services, programs, or activities, or was otherwise discriminated against by

27

the public entity,” and (3) their exclusion, denial, or discrimination was by reason of their

28

disability. Weinreich v. L.A. Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997).
14
16-cv-00943-AJB-BLM

1

A qualifying individual with a disability is a person that suffers from impairment that

2

substantially limits one or more major life activities, has a record of such an impairment,

3

or is regarded as having such an impairment. 42 U.S.C.A. §§ 12102 (1)(A)–(C). The

4

complaint does not sufficiently address Plaintiff’s status as a qualifying individual with a

5

disability.

6

Plaintiff merely states that she told arresting officers that she “was Federally

7

Disabled due to neck and back conditions[.]” (Doc. No. 91 at 7, 9.) Plaintiff also concludes

8

that she “should have been admitted to the Hospital for the management of . . . chronic

9

health issues, chronic pain and other systemic disorders for which [Plaintiff is] deemed

10

Federally Disabled.” (Id. at 13.) Additionally, Plaintiff’s complaint attaches a social

11

security administration document that purportedly demonstrates that she is disabled. (Doc.

12

No. 91-2.) Ultimately, these assertions are insufficient as they do not contain any clear

13

allegations about Plaintiff’s alleged impairment, major life activities that are substantially

14

limited, records of disability, or being regarded as having such an impairment. See 42

15

U.S.C.A. §§ 12102 (1)–(3); see also Jones v. Nat’l R.R. Passenger Corp., No. 15-CV-

16

02726-MEJ, 2016 WL 4538367, at *2 (N.D. Cal. Aug. 31, 2016) (holding disability claim

17

was not sufficiently pled where plaintiff merely stated she used a scooter and was a

18

“qualified individual with a disability”); Khalid v. Bank of Am., N.A., Civ. No. 15-00182

19

DKW-KSC, 2015 WL 5768944, at *3 (D. Haw. Sept. 30, 2015) (determining that the

20

plaintiff’s allegations that “they had ‘medical problems,’” and “medical complications

21

relating to a” heart blockage was insufficient to demonstrate that they were disabled under

22

the ADA).

23

As an apparent alternative to the protections of the ADA, Plaintiff states that “Per

24

the Rehabilitation Act 504 Reasonable Accommodations are required to be made by

25

employers for Disabled employees.” (Doc. No. 91 at 52.) Plaintiff requests that this Court

26

“consider any ruling that would hold Prisons equally responsible to their Disabled

27

Detainees . . . as Employers are held to their Disabled Employees.” (Id.) This argument is

28

meritless. The Court is unpersuaded that the Rehabilitation Act as stated could apply to the
15
16-cv-00943-AJB-BLM

1

situation as pled here. Thus, the Court declines Plaintiff’s request to consider the

2

Rehabilitation Act in analyzing the adequacy of her claims under Rule 12(b)(6).

3

As Plaintiff has failed to sufficiently plead a cause of action under the ADA and

4

Plaintiff’s request to consider asserted portions of the Rehabilitation Act as an alternative

5

ground for relief are unavailing, the seventh cause of action is DISMISSED.

6

4. Plaintiff’s Eighth cause of action for negligence is insufficiently pled.

7

The elements of a negligence cause of action are the existence of a legal duty of care

8

owed to the plaintiff by the defendant, a breach of that duty by the defendant, and the

9

breach must be the proximate cause of a resulting injury to the plaintiff. See Castellon v.

10

U.S. Bancorp, 220 Cal. App. 4th 994, 998 (2013). The basis for Plaintiff’s eighth cause of

11

action for negligence is as follows:

12

[U]nder the law of TORTS, a plaintiff must prove that the defendant had a
duty to the plaintiff, but the defendant breached that duty by failing to conform
to the required standard of conduct. The defendant’s negligent conduct was
the cause of harm to the plaintiff, and the plaintiff was, in fact, harmed or
damaged.

13
14
15
16

(Doc. No. 91 at 54.) Plaintiff goes on to allege that the “Officers had a duty [to] the plaintiff

17

to uphold her Constitutional and Statutory rights,” and that “both Sgt. Fellows and Officer

18

Biggler were negligent through their employment of ‘Unwarranted and Excessive Force[,]’

19

[and] Officers were negligent in not using their education and training in Management of

20

the Disabled Plaintiff.” (Id.) Additionally, Plaintiff alleges that the San Diego Police

21

Department has failed to provide sufficient oversight to prevent police brutality. (Id. at 54–

22

55.)

23

While the Court notes that Plaintiff has stated the elements of a cause of action for

24

negligence generally, Plaintiff has failed to clearly allege a cause of action against any of

25

the Defendants. Instead, Plaintiff merely describes the legal theory of negligence and then

26

broadly states that the specific and general actions of various Defendants were negligent

27

or are indicative of negligence. As this Court must ignore conclusory statements for the

28

purposes of assessing a motion to dismiss, Ashcroft, 556 U.S. at 678–79, and a mere
16
16-cv-00943-AJB-BLM

1

recitation of the elements of a cause of action will not do, Twombly, 550 U.S. at 555,

2

Plaintiff’s eighth cause of action is insufficiently pled and is DISMISSED.

3

V.

CONCLUSION

4

As explained in great detail above, the Court GRANTS Gore’s motion to quash.

5

(Doc. No. 95.) Additionally, even construing Plaintiff’s complaint liberally, as Plaintiff’s

6

complaint only provides overbroad conclusions without any conciseness or clarity as to the

7

claims being brought, both the County and City Defendants’ motions to dismiss are

8

GRANTED for failure to comply with Federal Rules of Civil Procedure 8 and 12(b)(6).

9

Plaintiff’s “malicious intent” cause of action is DISMISSED WITH PREJUDICE.

10

As this is the first round of motions to dismiss to have been fully briefed and

11

analyzed by the Court with a resulting order issued, the Court will allow Plaintiff leave to

12

amend. Plaintiff must file her amended complaint within twenty-one (21) days from the

13

date of this Order curing the deficiencies noted herein. Additionally, Plaintiff must properly

14

serve Defendant Gore with this amended complaint.

15
16

IT IS SO ORDERED.

17
18

Dated: August 27, 2018

19
20
21
22
23
24
25
26
27
28
17
16-cv-00943-AJB-BLM