Gilbreath v. City of Carlsbad et al

Filing 8

ORDER Granting 4 Defendant's Motion to Dismiss Without Leave to Amend. Signed by Judge Thomas J. Whelan on 4/9/2018. (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RANDY ELLIOT GILBREATH,

Case No.: 17cv1909 W (BLM)
Plaintiff,

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v.

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS WITHOUT
LEAVE TO AMEND [DOC. 4]

CITY OF CARLSBAD
Defendant.

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Defendant City of Carlsbad moves to dismiss the Complaint under Federal Rule of
Civil Procedure 12(b)(6). Plaintiff has not responded to the motion.

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The Court decides the matter on the papers submitted and without oral argument.

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See Civ. L.R. 7.1(d.1). For the reasons that follow, the Court GRANTS Defendant’s

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motion [Doc. 4] WITHOUT LEAVE TO AMEND.

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17cv1909 W (BLM)

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I.

BACKGROUND

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The following allegations are taken from the Complaint.

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On December 19, 2016, the San Diego County Sheriff’s Department received a

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telephone call from Plaintiff Randy Gilbreath’s ex-wife, who was in North Carolina.

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(Compl. [Doc. 1] ¶¶ 18, 19.) She reported that she had a telephone conversation with

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Gilbreath, who was staying in a hotel in Carlsbad, California while receiving medical

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treatment, and that he sounded suicidal, and he owned a gun. (Id. ¶ 18.) The Sheriff’s

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Department contacted the Carlsbad Police Department, which sent police officers to

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Gilbreath’s hotel room to conduct a “welfare check.” (Id. 19.)

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Carlsbad police officers arrived at Gilbreath’s room around 11:30 p.m., and

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knocked on the door. (Compl. ¶ 17.) Gilbreath, who was sleeping in his boxers, woke

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up, and when he answered the door, was “yanked out from the threshold of his hotel

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room by” the officers. (Id. ¶ 20.) Gilbreath was “then pulled into the hallway in front of

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his hotel room wearing nothing but boxer shorts….” (Id. ¶ 21.) One of the officers was

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carrying a shotgun at the time. (Id. ¶ 22.) While Gilbreath was standing in the hallway

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humiliated and embarrassed, officers entered and searched the hotel room without his

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consent or a warrant. (Id. ¶¶ 23, 24, 26.) When the officers were finished searching the

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room, they ordered Gilbreath back into his room. (Id. ¶ 27.) Gilbreath contends at some

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point he was forcibly pushed backwards into a chair. (Id. ¶ 28.)

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The next day, Gilbreath went to the Carlsbad Police Station and demanded a copy

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of the police report. (Compl. ¶ 29.) To this day he has not been given a copy of the

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report. (Id.)

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On September 19, 2017, Gilbreath filed this lawsuit against the City of Carlsbad.

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The Complaint asserts causes of action for (1) Violation of the Fourth Amendment Rights

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– Unlawful/Unreasonable Seizure of Person under 42 U.S.C. § 1983; (2) Violation of the

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Fourth Amendment Rights – Unreasonable/Unlawful Entry Into & Search and Seizure of

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Private Hotel Room under 42 U.S.C. § 1983; (3) False Arrest / False Imprisonment

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Under California State Law; and (4) Intentional Infliction of Emotional Distress Under
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17cv1909 W (BLM)

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California State Law. The City now seeks to dismiss the Complaint on the ground that

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Gilbreath has failed to state a claim. The City also asserts the dismissal should be

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without leave to amend. Gilbreath has not filed an opposition, not even to request that he

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should be given another attempt to amend the Complaint.

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II.

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

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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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Balisteri 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. 554, 555

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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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17cv1909 W (BLM)

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III.

DISCUSSION

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As an initial matter, the Court grants the City’s motion to dismiss based on

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Gilbreath’s failure to file an opposition as required by Civil Local Rule 7.1. The Ninth

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Circuit has held that pursuant to a local rule, a district court may properly grant a motion

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to dismiss for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.1995)

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(per curiam) (affirming dismissal for failure to file timely opposition papers where

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plaintiff had notice of the motion and ample time to respond).

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Civil Local Rule 7.1.f.3.c. expressly provides that “[i]f an opposing party fails to
file papers in the manner required by Local Rule 7.1.e.2, that failure may constitute a

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consent to the granting of a motion or other request for ruling by the court.” Here,

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Gilbreth did not file an opposition and has not requested additional time in which to do

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so. Moreover, there is no evidence before the Court suggesting that the City’s moving

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papers failed to reach Gilbreath’s counsel or that he was not aware of this pending

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motion. Relying on Civil Local Rule 7.1.f.3.c., the Court deems his failure to oppose the

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motion to dismiss as consent to its merits.

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Furthermore, regardless of Gilbreath’s failure to oppose the motion, the Court finds

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that Gilbreath has failed to state a claim against the City because based on the

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Complaint’s allegations, his rights were not violated. In United States v. Cervantes, 219

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F.3d 882 (9th Cir. 2000), the Ninth Circuit adopted the “emergency aid” exception to the

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Fourth Amendment’s warrant requirement. The exception applies where (1) the police

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have reasonable ground to believe there is an emergency at hand, and an immediate need

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for their assistance for the protection of life or property; (2) the search is not primarily

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motivated by an intent to arrest or seize evidence; and (3) there is a reasonable basis to

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associate the emergency with the place to be searched. Id. 888–890.

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Here, the Complaint admits that Gilbreath’s ex-wife called the San Diego Sheriff’s

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Department and reported that Gillbreath was staying at the hotel in Carlsbad, that he may

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have been suicidal, and owned a gun. (Compl. ¶ 18.) The Court finds these allegations

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are sufficient to establish that the officers’ warrantless search of Gilbreath’s hotel room
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satisfied the emergency-aid exception. Additionally, the allegations also establish that

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the officers’ brief detention of Gilbreath while they searched the room was reasonable

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and did not violate the Fourth Amendment. See Muehler v. Mena, 544 U.S. 93 (2005)

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(confirming an officer’s authority to detain incident to a search). For these reasons, the

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Court finds Gilbreath has failed to allege a section 1983 claim against the City.
Finally, Gilbreath’s state-law claims are premised on the alleged unlawfulness of

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the search and seizure. Because the search and seizure were lawful, Gilbreath has failed

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to state, and cannot state, state-law claims against the City.

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IV.

CONCLUSION & ORDER
For the foregoing reasons, the Court GRANTS Defendant City of Carlsbad’s

motion to dismiss [Doc. 4] WITHOUT LEAVE TO AMEND.
IT IS SO ORDERED.
Dated: April 9, 2018

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