Mendoza v. County of San Diego et al

Filing 9

ORDER Denying 6 Defendants' Motion to Dismiss. Signed by Judge Thomas J. Whelan on 3/7/2018. (jao)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 PHILLIP JESSE MENDOZA, Case No.: 17cv1349 W (NLS) Plaintiff, 14 15 v. 16 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS [DOC. 6] COUNTY OF SAN DIEGO, et al. Defendants. 17 Defendants County of San Diego and San Diego Sheriff’s Deputy James Givens 18 19 move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). Plaintiff 20 opposes. 21 The Court decides the matter on the papers submitted and without oral argument. 22 See Civ. L.R. 7.1(d.1). For the reasons that follow, the Court DENIES Defendants’ 23 motion [Doc. 6]. 24 // 25 // 26 // 27 // 28 1 17cv1349 W (NLS) 1 I. 2 BACKGROUND The following allegations are taken from the First Amended Complaint (“FAC” 3 [Doc. 5]). On June 12, 2016, Plaintiff was a patron of the Bancroft Bar in Spring Valley, 4 California. (FAC ¶ 20.) Plaintiff and another patron got into an argument that caused the 5 bar’s management to remove them, and call the San Diego Sheriff’s Department. (Id.) 6 Several other patrons followed Plaintiff as he left the bar. (Id. ¶ 21.) One of the patrons 7 carried a pool cue, and others carried billiard balls. (Id.) Plaintiff alleges that the group 8 of patrons started striking him with “these weapons, so the Plaintiff pulled out a knife to 9 defend himself.” (Id.) 10 While Plaintiffs was defending himself against the group of patrons, Defendant 11 Deputy Givens arrived at the scene and drove his patrol car into Plaintiff, throwing him 12 twenty feet in the air. (FAC ¶ 22.1) Plaintiff was then taken to Grossmont Hospital, and 13 being released was arrested for assault with a deadly weapon. (Id. ¶¶ 22–23.) 14 On July 3, 2017, Plaintiff filed this lawsuit. On November 13, 2017, he filed the 15 FAC alleging the following causes of action: excessive force under 42 U.S.C. § 1983 16 against Deputy Givens; Monell liability under 42 U.S.C. § 1983 against San Diego 17 County and Sheriff Gore; and state-law battery and negligence against all Defendants. 18 (Id. ¶¶ 30–69.) Defendants now seek to dismiss, arguing Deputy Givens is entitled to 19 qualified immunity, and the FAC fails to allege sufficient facts to support any of the 20 causes of action. (P&A [Doc. 6-1] 1:13–20.) Plaintiff opposes the motion. (See Opp’n 21 [Doc. 7].) 22 // 23 // 24 25 26 27 28 1 Defendants concur that Deputy Givens drove his patrol car into Plaintiff, but contend he was only knocked to the ground by the impact. (P&A [Doc. 6-1] 1:7–8.) But in evaluating a motion to dismiss, courts must accept plaintiff’s facts as true. Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007). 2 17cv1349 W (NLS) 1 II. 2 LEGAL STANDARD The Court must dismiss a cause of action for failure to state a claim upon which 3 relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) 4 tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 5 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either 6 for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. 7 Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the 8 motion, a court must “accept all material allegations of fact as true and construe the 9 complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty., 10 487 F.3d 1246, 1249 (9th Cir. 2007). A complaint must contain “a short and plain statement of the claim showing that 11 12 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court has 13 interpreted this rule to mean that “[f]actual allegations must be enough to raise a right to 14 relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 15 (2007). The allegations in the complaint must “contain sufficient factual matter, accepted 16 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 17 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 18 Well-pled allegations in the complaint are assumed true, but a court is not required 19 to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 20 inferences. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 21 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 22 23 III. DISCUSSION 24 A. 25 Plaintiff’s first cause of action alleges a 42 U.S.C. § 1983 claim based on the 26 contention that Deputy Givens used excessive force when he ran his patrol car into 27 Plaintiff. (FAC ¶ 33.) Defendants argue the claim should be dismissed because Deputy 28 Givens is entitled to qualified immunity. (P&A 1:12–15.) Qualified Immunity 3 17cv1349 W (NLS) 1 Qualified immunity shields government officials from liability for monetary 2 damages unless the plaintiff establishes that (1) the conduct violated a constitutional 3 right, and (2) the right was “clearly established” when the misconduct occurred. Pearson 4 v. Callahan, 555 U.S. 223, 232, 236–42 (2009) (modifying the two-step inquiry in 5 Saucier v. Katz, 533 U.S. 194 (2001), to allow courts discretion in deciding which prong 6 to address first depending on the facts of the particular case). 7 Defendants argue Deputy Givens’s actions were reasonable, and therefore did not 8 violate Plaintiff’s constitutional rights. (P&A 4:3–5.) Defendants further argue that even 9 if Deputy Givens’s actions were unreasonable, Plaintiff’s right to be free from the 10 particular use of force was not clearly established at the time. (Id. 4:10–13.) 11 The FAC’s factual allegations allege a Fourth Amendment violation. 12 1. 13 A Fourth Amendment excessive-force claim is analyzed under an objective 14 reasonableness standard. Graham v. Connor, 490 U.S. 386, 388 (1989). In determining 15 the reasonableness of an officer’s actions, the nature and quality of the intrusion on the 16 suspect’s Fourth Amendment interests are balanced against the countervailing 17 government interests. Id. at 396. All the facts and circumstances of a case are considered 18 in establishing the government’s interest, including the severity of the crime at issue, 19 whether the suspect poses an immediate threat to the safety of the officers or others, and 20 whether the suspect is resisting arrest or attempting to flee from arrest. Id. (citing 21 Tennessee v. Garner, 471 U.S. 1, 8 (1985)). In addition to the Graham factors, 22 circumstances such as the availability of less intrusive force and the use of proper 23 warnings are considered. Hughes v. Kisela, 862 F.3d 775, 780 (9th Cir. 2017) (citing 24 Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010). 25 26 27 28 a. Nature and quality of the intrusion. A means of force capable of inflicting significant pain and causing serious injury is considered “intermediate force” that presents a significant intrusion upon an individual’s 4 17cv1349 W (NLS) 1 constitutional interests. In Young v. City of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2 2011), the Ninth Circuit found a police officer’s use of pepper spray and a baton 3 constitutes intermediate force. See also Smith v. City of Hemet, 394 F.3d 689, 701–02 4 (9th Cir. 2005) (use of pepper spray and police dogs also considered intermediate force). 5 Using a patrol car to strike and subdue a suspect presents a similar, if not higher, risk of 6 causing significant pain and injury as using pepper spray in combination with a baton or 7 police dog. Although Defendants attempt to focus the analysis on the severity of 8 Plaintiff’s injury, the proper analysis is whether the means of force was capable of 9 causing serious injury. Striking a suspect with a car is objectively capable of causing 10 serious injuries. Therefore, the government’s interest must be equally significant to 11 justify the force used. 12 13 14 b. The government’s interest. When law enforcement encounters a suspect armed with a knife, the severity of the 15 crime can weigh against finding excessive force. See Nehad v. Zimmerman, 2017 WL 16 6453475 at *4 (S.D. Cal. Dec. 18, 2017) (suspect wielding knife and advancing on 17 officers supported a finding of a more severe crime); Pham v. City of San Jose, 2013 WL 18 5443027 at *6 (N.D. Cal. Sept. 30, 2013) (suspect that already injured another with a 19 knife weighed in favor of a severe crime). But, the fact that a suspect is armed with a 20 knife is not dispositive. Chien Van Bui v. City and Cnty. of San Francisco, 699 Fed. 21 Appx. 614, 615 (9th Cir. 2017). Instead, the most important factor is whether the suspect 22 poses an immediate threat to officers or others. Zion v. City of Orange, 874 F.3d 1072, 23 1075 (9th Cir. 2017) (citing Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011). 24 Here, although Plaintiff held a knife when Deputy Givens arrived, he contends he 25 had the knife to defend himself against the group of bar patrons who were attacking him 26 with billiard balls and a pool cue. (FAC ¶ 21.) Plaintiff also alleges he never tried to stab 27 anyone. (Id. ¶ 26.) These facts support an inference that Plaintiff did not pose an 28 immediate threat to the patrons. Additionally, a jury could also find Plaintiff did not pose 5 17cv1349 W (NLS) 1 a threat to Deputy Givens, since the Deputy was in the patrol car when he arrived at the 2 scene. (Id. ¶ 22.) Nor are there any allegations Plaintiff was trying to resist arrest or flee. 3 (See id. ¶ 26.) These facts all support Plaintiffs’ excessive-force claim. 4 Finally, when evaluating an excessive-force claim, the availability of less intrusive 5 force and the use of proper warnings may be relevant. Kisela, 862 F.3d at 780. When 6 feasible, a warning should be given before the use of non-lethal force that may cause 7 serious injury. Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001). In Deorle, the 8 officers failed to give a warning before using a bean-bag gun as a suspect was advancing 9 on them with a can or bottle in hand. Id. at 1277–78. Failing to give a warning in such 10 circumstances weighed in favor of finding excessive force. Id. at 1285. Similarly, the 11 court found officers who failed to give a warning before shooting a knife-wielding 12 suspect, who stood six to eight feet from the officers, supported a finding of excessive 13 force. Hayes v. County of San Diego, 736 F.3d 1223, 1234–35 (9th Cir. 2013). 14 Here, no warning was given before Deputy Givens struck Plaintiff with his patrol 15 car. The failure to warn Plaintiff before using a method of force that could cause serious 16 injury also supports Plaintiff’s excessive-force claim. 17 18 19 c. Balancing the parties’ interests. Viewing the facts in the light most favorable to Plaintiff, Deputy Givens arrived on 20 the scene to find Plaintiff brandishing a knife while being threatened or attacked by a 21 crowd of bar patrons armed with a pool cue and billiard balls. Instead of warning 22 Plaintiff, Deputy Givens ran his car into Plaintiff, causing him to fly 20 feet in the air. 23 Under these facts, Plaintiff has pled a violation of his Fourth Amendment rights. 24 25 26 2. The right was clearly established. “Clearly established” means “[t]he contours of the right must be sufficiently clear 27 that a reasonable official would understand what he is doing violates that right” with 28 careful consideration to the facts of the particular case. Anderson v. Creighton, 483 U.S. 6 17cv1349 W (NLS) 1 635, 640 (1987). In determining whether a right is clearly established, courts “may look 2 at unpublished decisions and the law of other circuits, in addition to Ninth Circuit 3 precedent.” Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005); Sorrels v. 4 McKee, 290 F.3d 965, 970 (9th Cir. 2002) (looking to “decisions of our sister Circuits, 5 district courts, and state courts” in evaluating if law was clearly established). 6 Officers can still be on notice that their conduct violated established law in novel 7 factual circumstances, because the salient issue is whether the state of the law gives 8 notice that the conduct at issue was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 9 (2002). However, the general excessive force principles set forth in Graham, while not 10 inherently incapable of giving fair and clear warning to an officer, do not by themselves 11 create clearly established law outside an obvious case. S.B. v. County of San Diego, 864 12 F.3d 1010, 1015 (9th Cir. 2017) (citing White v. Pauly, 552 S.Ct. 548, 552 (2017)). 13 Although the parties have not cited an excessive-force case involving similar facts, 14 cases evaluating uses of force capable of causing serious injury against armed suspects 15 appear to clearly require an officer to warn the suspect, if possible. See Deorle v. 16 Rutherford, 272 F.3d at 1285; Hayes v. County of San Diego, 736 F.3d at 1234-35. 17 Based on these cases and under Plaintiff’s version of events, the Court finds the law was 18 clearly established that Deputy Givens could not drive his patrol car into Plaintiff, 19 without any warning, at a speed sufficient to throw him twenty feet in the air. 20 21 B. 22 Plaintiff’s second cause of action alleges municipal liability pursuant to 42 U.S.C. Municipal Liability 23 §1983 under two theories: (1) Plaintiff’s injuries were caused by the County’s alleged 24 policy, custom, or practice of using excessive force in effectuating arrests as well as 25 failing to monitor, train, and supervise deputies; and (2) Sheriff Gore or other supervisory 26 officials ratified Deputy Givens’ alleged use of excessive force. (FAC ¶¶ 13, 38–44, 47– 27 49.) In their motion, Defendants attack only the first theory. Specifically, they argue the 28 claim must be dismissed because Plaintiff fails to allege facts establishing a policy or 7 17cv1349 W (NLS) 1 longstanding practice or custom that caused Deputy Givens to pursue the allegedly 2 unconstitutional conduct. (P&A 5:26–27, 6:8–9.) Defendants do not challenge Plaintiff’s 3 second theory of ratification. 4 In moving to dismiss, Defendants bear the burden to show no set of Plaintiff’s 5 allegations support a claim for relief. Terracom v. Valley Nat’l Bank, 49 F. 3d 555, 558 6 (9th Cir. 1995); See Vasquez, 487 F.3d at 1249. Because Defendants have not 7 challenged Plaintiff’s ratification theory, even if they prevail in challenging the policy, 8 custom or practice theory, they will not have demonstrated that no set of allegations 9 support Plaintiff’s second claim. Therefore, Defendants’ motion to dismiss this claim 10 must be denied. 11 12 C. 13 Plaintiff’s third and fourth claims allege state-law battery and negligence against State Law Battery and Negligence 14 Deputy Givens for striking Plaintiff with his car, and vicarious liability against the 15 County under California Government Code § 815.2. (FAC ¶¶ 53, 55, 59, 61.) 16 Defendants argue Deputy Givens is immune from liability under California Government 17 Code § 820.2 and, therefore, the County cannot be vicariously liable when its employee 18 is immune. (P&A 8:27–28, 9:22–23, 10:11–14.) 19 Under section 820.2, a public employee is not liable for an injury caused by an act 20 or omission that was the result of the exercise of the discretion vested in the employee, 21 whether or not such discretion is abused. Discretionary acts are basic policy decisions 22 that have been expressly committed to coordinate branches of government, such that 23 judicial interference would be unseemly. Conway v. Cnty. of Tuolumne, 231 Cal. App. 24 4th 1005, 1014 (2014). However, as a matter of public policy, discretionary immunity 25 does not apply to cases of excessive force in effectuating arrests. Id. at 1015; Scruggs v. 26 Haynes, 252 Cal. App. 2d 256, 267–68 (1967). Therefore, Deputy Givens and the 27 County are respectively not immune under California Government Code §§ 820.2 and 28 815.2(b). 8 17cv1349 W (NLS) 1 Defendants also argue that regardless of statutory immunity, the state-law claims 2 should be dismissed because Deputy Givens acted reasonably under the circumstances. 3 (P&A 9:12-27; Reply [Doc. 8] 9:6–8.) In short, Defendants argue the state-law claims 4 should be dismissed because there was no excessive force. Because the Court has found 5 Plaintiff has stated an excessive-force claim, Defendants’ alternative argument also fails. 6 7 8 9 10 IV. CONCLUSION & ORDER For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss [Doc. 6]. Dated: March 7, 2018 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 17cv1349 W (NLS)

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