Gregory v. Newberg et al
Filing
11
Opinion and Order. The Court GRANTS Defendants Motion 8 for Judgment on the Pleadings. The Court also GRANTS Plaintiff leave to file an Amended Complaint no later than October 9, 2015, only (1) to the extent that Plaintiff can allege negligence b ased on a separate set of facts or allege a claim for negligence specifically in the alternative to his § 1983 claims and (2) to cure the deficiencies of his Monell claim as set out in this Opinion and Order. Plaintiff is advised that failure to file an Amended Complaint will result in dismissal of this matter with prejudice. Signed on 09/21/2015 by Judge Anna J. Brown. See attached 23 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AUSTIN GREGORY,
Plaintiff,
v.
CITY OF NEWBERG; HUNTLEY
MILLER, Personally; and BRIAN
CASEY, Personally,
Defendants.
LEONARD RANDOLPH BERMAN
4711 S.W. Huber Street
Suite E-3
Portland, OR 97219
(503) 516-3715
Attorney for Plaintiff
STEVEN A. KRAEMER
BRYCE W. HANKS
Hart Wagner, LLP
1000 S.W. Broadway
Suite 2000
Portland, OR 97205
(503) 222-4499
Attorneys for Defendants
1 - OPINION AND ORDER
3:15-CV-00473-BR
OPINION AND ORDER
BROWN, Judge.
This matter comes before the Court on Defendants' Motion
(#8)
for Judgment.on the Pleadings.
For the reasons that follow,
the Court GRANTS Defendants' Motion.
BACKGROUND
Plaintiff Austin Gregory alleges the following facts in his
Complaint:
On March 31, 2013 at 10:13 a.m., Mr. Gregory, then
a minor of 16 years, was lawfully in his home at
819 Zoe Court in Newberg, when Huntley Miller
visited and spoke with his mother Patricia
Gregory. Austin Gregory came near the door and
spoke to Miller.
While speaking with Ms. Gregory,
Miller instructed Miller [sic] to go "into• his
house or face arrest, while Austin was already
standing inside the home.
When Austin verbally challenged Millers'
authority, saying he was rightfully and lawfully
in his own home and there was no basis to arrest
him, Miller lunged in to the home and grabbed
Austin out of his home, slammed him on to the
ground and, battered him and arrested him.
He
suffered a concussion and closed head injuries.
His juvenile conviction[s] for interfering and
resisting arrest [are] pending appeal in State
court.
Plaintiff timely filed a notice of tort claim
September 23, 2013.
Compl. at
~~
8-11.
Although it is not entirely clear in his
Complaint, the parties clarify in their later briefing that
Plaintiff was arrested for and charged with the crime of
interfering with a police officer as well as with the crime of
2 - OPINION AND ORDER
resisting arrest arising from his conduct during his arrest for
interfering with a police officer.
In addition, neither of
Plaintiff's convictions for ihterfering with a police officer or
resisting arrest have been overturned or expunged on appeal.
On March 23, 2015, Plaintiff filed a Complaint in this Court
against the City of Newberg, Officer Miller, and Chief of Newberg
Police Brian Casey asserting claims pursuant to 42 U.S.C.
§
1983
for (1) wrongful arrest in violation of the Fourth Amendment to
the United States Constitution,
(2) excessive force in violation
of the Fourth Amendment, and (3) a claim under Monell v.
Department of Social Services, 436 U.S. 658 (1978).
Plaintiff
also asserted state-law claims for negligence, false arrest,
battery, and malicious prosecution.
On June 1, 2015, Defendants filed a Motion for Judgment on
the Pleadings as to all of Plaintiff's claims.
The Court took
the Motion under advisement on June 29, 2015.
STANDARDS
Federal Rule of Civil Procedure 12(c) provides:
After the pleadings are closed but within such
time as not to delay the trial, any party may move
for judgment on the pleadings.
If, on a motion
for judgment on the pleadings, matters outside the
pleadings are presented to and not excluded by the
court, the motion shall be treated as one for
summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent
to such a motion by Rule 56.
3 - OPINION AND ORDER
For purposes of a motion pursuant to Rule 12(c), the court must
accept the nonmoving party's allegations as true and view all
inferences in a light most favorable to the nonmoving party.
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
A
judgment on the pleadings is properly granted when, taking all
allegations in the nonmoving party's pleadings as true, the
moving party is entitled to judgment as a matter of law.
Compton
Unified Sch. Dist. v. Addison, 598 F.3d 1181, 1185 (9th Cir.
2010) .
"To survive a Rule 12(c) motion, the complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face."
Davis v. Astrue,
Nos. C-06-6108 EMC, C-09-0980 EMC, 2011 WL 3651064, at *l (N.D.
Cal. Aug. 18, 2011) (citation omitted).
Dynamics C4 Sys., Inc.,
See also Cafasso v. Gen.
637 F.3d 1047, 1055 n.4
(9th Cir. 2011) (A
Rule 12(c) motion is "functionally identical to a Rule 12(b) (6)
motion to dismiss for failure to state a claim, and therefore the
same legal standard applies.") .
DISCUSSION
As noted, Defendants move for judgment on the pleadings as
to all of Plaintiff's claims.
I.
Heck v. Humphrey bars Plaintiff's§ 1983 claim for wrongful
arrest.
Defendants assert Plaintiff's§ 1983 claim for wrongful
4 - OPINION AND ORDER
arrest is barred by Heck v. Humphrey, 512 U.S.
477 (1994),
because a judgment in favor of Plaintiff in this action as to
that claim would necessarily imply the invalidity of Plaintiff's
convictions in state court for interfering with a police officer
and resisting arrest.
Plaintiff, however, asserts Heck does not apply to the
juvenile adjudications against Plaintiff for interfering with a
police officer and resisting arrest.
A.
Heck Doctrine.
In Heck the Supreme Court held:
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or
for other harm caused by actions whose
unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make
such determination, or called into question by a
federal court's issuance of a writ of habeas
corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or
sentence that has not been so invalidated is not
cognizable under § 1983.
Thus, when a state
prisoner seeks damages in a § 1983 suit, the
district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it
would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or
sentence has already been invalidated.
512 U.S. at 486-87
(footnotes omitted).
In Smith v. City of Hemet the Ninth Circuit reiterated:
"[I]f a criminal conviction arising out of the same facts stands
5 - OPINION AND ORDER
and is fundamentally inconsistent with the unlawful behavior for
which section 1983 damages are sought, the 1983 action must be
dismissed."
omitted).
394 F.3d 689, 695 (9th Cir. 2005) (quotation
"Consequently,
success in a subsequent
§
'the relevant question is whether
1983 suit would necessarily imply or
demonstrate the invalidity of the earlier conviction or
sentence.'"
Beets v. County of Los Angeles,
(9th Cir. 2012) (quoting Heck,
B.
669 F.3d 1038, 1042
512 U.S. at 487).
Heck applies to Plaintiff's juvenile adjudication.
Plaintiff notes he was a juvenile at the time of the
events at issue, and his adjudication occurred in juvenile court.
Plaintiff, however, asserts his juvenile adjudication is not
susceptible to a Heck challenge.
Although this district has not explicitly resolved
whether a juvenile adjudication is susceptible to a Heck
challenge, the Court notes at least two judges in the district
assumed, without deciding, that Heck would apply.
See Baldenegro
v. Naylor, No. 1:11-cv- 03038-CL, 2012 WL 2367380, at *1 (D. Or.
May 10, 2012), Finding and Recommendation adopted by Judge Ovren
Fanner, 2012 WL 2367377 (D. Or. June 21, 2012).
Courts in other
jurisdictions, in any event, have held Heck applies to juvenile
adjudications.
See, e.g., Adkins v. Johnson,
319 (10th Cir. 2012)
Heck v. Humphrey,
482 F. App'x 318,
(" [T]he district court correctly ruled that
512 U.S. 477
6 - OPINION AND ORDER
(1994), bars a suit for damages
based on the allegations that implicate the validity of the five
juvenile judgments."); Grande v. Keansburg Borough, No.
12-1968(JAP), 2013 WL 2933794, at *6 (D.N.J. June 13, 2013)
-(applying Heck to § 1983 claim based on a juvenile adjudication)
Similarly, in jurisdictions with state laws that
establish juvenile adjudications are not convictions, courts
have, nevertheless, held Heck applies.
For example, in Morris v.
City of Detroit the court recognized even though a juvenile
adjudication is not a criminal proceeding under Michigan law, a
juvenile adjudication retains many of the procedural rights and
features of a criminal proceeding and is, therefore, "certainly
the functional equivalent" of a criminal conviction.
App'x 409, 411 (6th Cir. 2006).
211 F.
In Dominguez v. Shaw although
the court noted a juvenile adjudication is not a conviction under
Arizona law, the court, nevertheless, found there was not any
"reason to treat juvenile adjudications differently than adult
convictions for the purposes of Heck analysis." No. CV 1001173-PHX-FJM, 2011 WL 4543901, at *2-*3 (D. Ariz. Sept. 30,
2011) .
The court noted:
The crucial issue in assessing whether Heck bars
[the plaintiff's] § 1983 claim is whether a
finding by this court that the defendants' conduct
warrants damages would necessarily invalidate the
juvenile court's finding that [the plaintiff]
engaged in illegal conduct.
Whether the juvenile
court's finding is labeled a conviction or an
adjudication is, for Heck purposes, irrelevant
If success on the § 1983 claim would
undermine [the plaintiff's] juvenile adjudication,
7 - OPINION AND ORDER
which has not been reversed or set aside, the
claim has not yet accrued.
Id., at *3 (citation omitted).
Oregon courts have held "any procedure constitutionally
required in criminal proceedings which is one of the essentials
of due process and fair treatment will be required in juvenile
proceedings."
State ex rel. Juvenile Dep't of Marion Cnty. v.
Smith, 126 Or. App. 646, 650 (1994) (quotation omitted).
Accordingly, in a juvenile adjudication the juvenile has the
right to notice of the charges against him, the right to counsel,
the right to require the state to prove his case beyond a
reasonable doubt, and the rights of confrontation and
cross-examination.
Id. at 242 n.5.
The juvenile also enjoys the
privilege against self-incrimination and the prohibition against
double jeopardy.
Id.
The Court concludes in Oregon, as in
Arizona and Michigan, a juvenile adjudication is the functional
equivalent of an adult criminal proceeding for purposes of Heck.
Accordingly, the Court concludes Heck applies to bar Plaintiff's
claims under § 1983 to the extent that they would necessarily
imply the invalidity of Plaintiff's juvenile adjudication for
resisting arrest and interfering with a police officer.
C.
Heck bars Plaintiff's§ 1983 claim for wrongful arrest.
In his § 1983 claim for wrongful arrest Plaintiff
relies on the allegations in
~~
8-11 of his Complaint and asserts
Officer Miller arrested him for interfering with a police officer
8 - OPINION AND ORDER
without probable cause and wrongfully charged him with resisting
arrest.
As noted, however, Plaintiff's adjudications for
interfering with a police officer and resisting arrest have not
been overturned or expunged.
The Ninth Circuit has held a plaintiff's claim for
wrongful arrest is barred under Heck when, as here, the plaintiff
is unable to show both that his conviction is not inconsistent
with such a claim and that the conviction was overturned or
reversed.
See, e.g., Backus v. Gissel,
491 F. App'x 838, 839
(9th Cir. 2012) (affirming district court's dismissal of the
plaintiff's§ 1983 claims for false arrest and malicious
prosecution "as Heck-barred" because success on those claims
would necessarily imply the invalidity of the plaintiff's arrest
and conviction.); Guerrero v. Gates,
442 F.3d 697, 705
(9th Cir.
2006) (Heck barred the plaintiff's claims under§ 1983 for
wrongful arrest, malicious prosecution, and conspiracy because
success on those claims "would necessarily imply the invalidity
of his two convictions for possession of narcotics.
Wrongful
arrest, malicious prosecution, and a conspiracy among Los Angeles
officials to bring false charges against [the plaintiff] could
not have occurred unless he were innocent of the crimes for which
he was convicted."); Johnson v. Arndt, 124 F. App'x 514, 515 (9th
Cir. 2005) ("The district court properly dismissed without
prejudice [the plaintiff's] illegal seizure and wrongful arrest
9 - OPINION AND ORDER
claims [as barred by Heck] because success on these claims would
necessarily imply the invalidity of [the plaintiff's)
convictions, and he has not demonstrated that those convictions
have been overturned.").
District courts in the Ninth Circuit have reached the
same conclusion.
For example, in Sjogren v. City of Seaside the
plaintiff was charged with interfering with a police officer and
resisting arrest under Oregon law, pled no contest to those
charges, and was convicted of both crimes.
The plaintiff then
brought an action under § 1983 for, among other things, wrongful
arrest.
Specifically, the plaintiff asserted the officer did not
have probable cause to arrest the plaintiff for interfering with
a police officer and "brought unfounded criminal charges against
him."
No. 05-CV-1478-ST, 2007 WL 221869, at *5 (D. Or. Jan. 19,
2007).
The court held the plaintiff's claim for arrest without
probable cause was barred by Heck because the plaintiff's
convictions for interfering with a police officer and resisting
arrest had not been expunged or overturned and "the validity of
an arrest, prosecution and conviction may be challenged only by
writ of habeas corpus."
Similarly in Dowd v. County of Kern the plaintiff was
arrested and convicted of interfering with a peace officer.
No. 1:12-cv-01063-LJO-JLT, 2012 WL 3704827, at *3 (E.D. Cal.
Aug. 27, 2012).
The plaintiff brought a§ 1983 action alleging,
10 - OPINION AND ORDER
among other things, a claim for wrongful arrest on the ground
that the police officer lacked probable cause to arrest him.
The
court held Heck barred the plaintiff's wrongful-arrest claim
because the plaintiff's conviction for interfering with a peace
officer had not been invalidated and a judgment in favor of the
plaintiff on his wrongful-arrest claim ftwould necessarily imply
the invalidity of his conviction.n
Id., at *4.
As in Backus, Guerrero, Johnson,
Sjogren, and Dowd
Plaintiff's§ 1983 claim for wrongful arrest is barred by Heck
because success on this claim based on the lack of probable cause
for Plaintiff's arrest would necessarily imply the invalidity of
his juvenile adjudication.
Accordingly, the Court grants
Defendants' Motion for Judgment on the Pleadings as to
Plaintiff's§ 1983 claim for wrongful arrest and dismisses that
claim without prejudice.
II.
Heck bars Plaintiff's state-law claim for false arrest.
Defendants assert Plaintiff's state-law claim for false
arrest is barred by Heck.
Plaintiff contends he was falsely arrested because Officer
Miller did not have probable cause to arrest him for interfering
with a police officer.
"Heck .
. generally bars a claim for
false arrest under § 1983 if success in the false arrest suit
would be inconsistent with an underlying conviction."
Parks,
450 F.3d 1059, 1065 n.5 (9'h Cir. 2006).
11 - OPINION AND ORDER
Hart v.
See also Radwan
v. County of Orange, 519 F. App'x 490, 491 n.l (9th Cir. 2013)
("Heck also bars Radwan's state-law false arrest claims because
success on those claims· would call into question the lawfulness
of his prior conviction for marijuana possession.").
Under Oregon law ''the tort [of false arrest] has four
elements:
( 1) defendant must confine plaintiff;
(2) defendant
must intend the act that causes the confinement;
(3) plaintiff
must be aware of the confinement; and (4) the confinement must be
unlawful."
Hiber Creditors Collection Serv., Inc.,
154 Or. App.
408, 413 (1998) (citing Lukas v. J.C. Penney Co., 233 Or. 345, 353
(1963), and Walker v. City of Portland, 71 Or. App. 693,
697
(1985)).
Here the Oregon courts have not reversed, expunged, or
questioned Plaintiff's adjudication, and success on Plaintiff's
false-arrest claim on the ground of lack of probable cause would
call into question the lawfulness of his adjudication for
interfering with a police officer and resisting arrest.
The
Court, therefore, concludes Plaintiff's claim under § 1983 for
false arrest is barred under Heck.
Accordingly, the Court grants Defendants' Motion for
Judgment on the Pleadings as to Plaintiff's state-law claim for
false arrest and dismisses that claim without prejudice.
III. Heck bars Plaintiff's§ 1983 claim for excessive force.
Plaintiff asserts Officer Miller violated Plaintiff's right
12 - OPINION AND ORDER
not to be subjected to excessive force when he grabbed Plaintiff,
slammed him on the ground, and arrested him for resisting arrest
and interfering with a police officer.
Defendants assert Heck
bars Plaintiff's claim for excessive force because Plaintiff was
adjudicated for resisting arrest under Oregon Revised Statute
§ 162.315 and success on Plaintiff's excessive force claim would
necessarily imply the invalidity of his adjudication for
resisting arrest.
Oregon Revised Statute § 162.315(1) provides:
"A person
commits the crime of resisting arrest if the person intentionally
resists a person known by the person to be a peace officer
in making an arrest."
§ 161. 260 provides:
In addition, Oregon Revised Statute
"A person may not use physical force to
resist an arrest by a peace officer who is known or reasonably
appears to be a peace officer, whether the arrest is lawful or
unlawful."
Oregon Revised Statute§ 161.290, however, permits an
individual "to use such force as is necessary to overcome what
the person reasonably believes to be the unlawful use of physical
force by anyone, including a police officer."
State v. Oliphant,
347 Or. 175, 193 (2009).
The Oregon Supreme Court resolved the "apparent conundrum"
that under Oregon law "[a] person may not use force to resist
arrest, even if the arrest is unlawful, but any person is
entitled to use such force as is necessary to overcome what the
13 - OPINION AND ORDER
person reasonably believes to be the unlawful use of physical
force by anyone, including a police officer" as follows:
"it is crucial to distinguish between (1) the use
of physical force in resisting arrest and (2) the
use of physical force in defending oneself, i.e.,
self-defense, against excessive use of force by
the arresting officer.
* * *
"If a peace officer uses excessive force in making
an arrest, the arrestee has a right to use
physical force in self-defense against the
excessive force being used by the officer.
In that circumstance, the arrestee is not
resisting arrest, but, rather, is defending
against the excessive force being used by the
arresting officer."
Id.
(quoting State v. Wright,
310 Or.
430, 434-35 (1990)).
It is
not clear on this record whether Plaintiff raised a defense of
self-defense in his juvenile adjudication.
If Plaintiff raised
such a defense, it could be properly inferred that Officer Miller
did not use excessive force.
If Plaintiff did not raise the
issue of self-defense but succeeded on his § 1983 excessive-force
claim, his success would necessarily imply the invalidity of his
adjudication for resisting arrest.
The Court, therefore,
concludes Heck bars Plaintiff's § 1983 excessive-force claim.
Accordingly, the Court grants Defendants' Motion for
Judgment on the Pleadings as to Plaintiff's§ 1983 claim for
excessive force and dismisses that claim without prejudice.
IV.
Heck bars Plaintiff's state-law battery claim.
Plaintiff relies on the facts stated in ]] 8-11 of his
14 - OPINION AND ORDER
Complaint and asserts Officer Miller's actions "constituted the
tort of battery."
Defendants, in turn, assert Heck bars
Plaintiff's battery claim.
Under Oregon law the elements of a battery claim are wellestablished:
"[T]he conduct which brings about the harm must be
an act of volition on the actor's part, and the
actor must have intended to bring about a harmful
or offensive contact or put the other party in
apprehension thereof.
It is not necessary that
the contact do actual physical harm - it is
sufficient if the contact is offensive or
insulting."
Johnson v. Jones, 269 Or. App. 12, 17 (2015) (quoting Bakker v.
Baza 'r, Inc., 275 Or. 245, 249 (1976)).
"Thus, a
'battery is a
voluntary act that is intended to cause the resulting harmful or
offensive contact.'"
Id.
(quoting Harris v. Pameco Corp., 170
Or. App. 164, 169 (2000)).
In Ballard v. City of Albany the plaintiff asserted
defendant police officers committed battery against him during
his arrest when they "intentionally and recklessly deployed their
police dog, sprayed, beat and attacked plaintiff."
630, 640 (2008).
221 Or. App.
The court noted:
A "battery" is a "voluntary act that is intended
to cause the resulting harmful or offensive
contact." Walthers v·. Gossett, 148 Or. App. 548.,
552 (1997).
[A] police officer is justified
under [Oregon Revised Statute§ 161.235] in using
physical force when he or she believes it is
reasonably necessary to make an arrest, see Gigler
v .. Klamath Falls, 21 Or. App. 753, 763 (1975), and
a police officer is presumed to be acting in good
15 - OPINION AND ORDER
faith in determining the amount of force necessary
to make the arrest.
Rich v. Cooper, 234 Or. 300,
309 (1963).
However, the use of excessive force
by a police officer in carrying out an arrest can
give rise to civil liability for battery.
Id. at 640-41.
Thus, only excessive force by a police officer
carrying out an arrest can give rise to civil liability for
battery.
In addition, as noted in the excessive-force claim
analysis, when "a peace officer uses
excessiv~
force in making an
arrest, the arrestee has a right to use physical force in
self-defense.
In that circumstance, the arrestee is not
resisting arrest, but, rather, is defending against the excessive
force being used by the arresting officer."
Oliphant, 347 Or. at
193 (quotation omitted) .
As with Plaintiff's claim for excessive force, success on
Plaintiff's claim of battery would necessarily imply. the force
used by Officer Miller was excessive; that Plaintiff had a right
to defend against the excessive force; and, therefore, that
Plaintiff was not resisting arrest.
Thus, success on Plaintiff's
claim for battery would necessarily call into question his
conviction for resisting arrest.
The Court, therefore, concludes
Heck bars Plaintiff's battery claim.
Accordingly, the Court grants Defendants' Motion for
Judgment on the Pleadings as to Plaintiff's battery claim.
V.
Heck bars Plaintiff's state-law claim for malicious
prosecution.
Plaintiff asserts Defendants committed malicious prosecution
16 - OPINION AND ORDER
when they commenced prosecution against Plaintiff without
probable cause to prosecute.
To establish malicious prosecution
under Oregon law a plaintiff must prove (1) the defendant
initiated or prosecuted a judicial proceeding against the
plaintiff,
favor,
action,
( 2) the proceeding terminated in the plaintiff's
(3) the defendant lacked probable cause to prosecute the
(4) the defendant acted with malice or with the "primary
purpose other than that of securing an adjudication of the claim
by the defendant,'' and (5) the plaintiff suffered damages.
Perry
v. Rein, 215 Or. App. 113, 125 (2007).
Plaintiff states in his Complaint that his appeal of his
adjudication for resisting arrest and interfering with a police
officer is pending.
Plaintiff, therefore, has not and cannot
allege his adjudication terminated in his favor.
Accordingly, the Court grants Defendants' Motion for
Judgment on the Pleadings as to Plaintiff's state-law claim for
malicious prosecution and dismisses that claim without prejudice.
VI.
Plaintiff does not sufficiently state a negligence claim.
Plaintiff alleges Defendant City of Newberg was negligent
because it (1) failed "to administer training and to timely and
appropriately hire, train and supervise employees regarding
dealing with citizens safelyn;
(2)
failed "to hire, train and
supervise employees regarding safe restraint of civilians"; and
(3) failed "to train for legal bases to arrest."
17 - OPINION AND ORDER
Plaintiff also
asserts the individual officers "were negligent in their dealings
with plaintiff in causing injury without provocation or
justification."
Defendants assert Plaintiff's negligence claim fails because
in this district "a·state common-law claim of negligence may be
maintained separately from a § 1983 claim only when the
negligence claim is based on facts that are different from the
facts on which the § 1983 claims are based."
Whitfield v.
Tri-Metropolitan Transp. Dist., No. 06-1655-HA, 2009 WL 839484,
at *11
(D. Or. Mar. 30, 2009) (citing Shilo v. City of Portland,
Civ. No. 04-130-AS, 2005 WL 3157563, *1 (D. Or. Nov. 22, 2005)).
As the court explained in Shilo:
[M]ere negligence cannot sustain a § 1983 claim
Thus, as a matter of principle, the court
recognizes that a plaintiff may allege negligence
as a basis for recovery separate from § 1983 for
acts arising in the Fourth Amendment search and
seizure context.
The negligence claim, however,
should not be founded on the same facts that give
rise to the § 1983 claim.
Shilo,
2005 WL 3157563, at * 1 (citing Lewis v. City of St.
Petersburg, 260 F.3d 1260, 1263 (11th Cir. 2001)).
Here Plaintiff's negligence claim is based on the same set
of facts that give rise to his
and his § 1983 Monell claim.
§
1983 claim for excessive force
The Court, therefore, grants
Defendants' Motion for Judgment on the Pleadings as to
Plaintiff's claim for negligence and dismisses that claim with
leave to file an Amended Complaint to the extent that Plaintiff
18 - OPINION AND ORDER
can allege negligence based on a separate set of facts or allege
a claim for negligence specifically in the alternative to his
§
1983 claims.
VII. Plaintiff does not sufficiently state a claim under Moneii.
In Monell v. Department of Social Services of City of New
York the Supreme Court held municipalities are "persons" subject
to damages liability under section 1983 when "action pursuant to
official municipal policy of some nature cause[s] a
constitutional tort."
436 U.S. 658,
691 (1978).
The Supreme
Court made clear that the municipality itself must cause the
constitutional deprivation and that a city may not be held
vicariously liable for the unconstitutional acts of its employees
under the theory of respondeat superior.
Canton v. Harris,
Id.
See also City of
489 U.S. 378, 385 (1989) (requiring "a direct
causal link between a municipal policy or custom and the alleged
constitutional deprivation").
The Ninth Circuit has held a plaintiff may establish
municipal liability under Monell in one of three ways:
(1) the
officer "committed the alleged constitutional violation pursuant
to a formal governmental policy or a longstanding practice or
custom which constitutes the standard operating procedure of the
local governmental entity," (2) "the individual who committed the
constitutional tort was an official with final policy-making
authority," or (3)
"an official with final policy-making
19 - OPINION AND ORDER
authority ratified a subordinate's unconstitutional decision or
action and the basis for it.n
Gillette v. Delmore,
1342, 1346-47 (9th Cir. 1992).
See also Heath v. City of Desert
979 F.2d
Hot Springs, No. 13-55946, 2015 WL 3942839, at *3 (9th Cir.
June 29, 2015) (same).
In his Monell claim Plaintiff alleges:
Huntley Miller, acting under color of law,
deprived plaintiff of his Fourth Amendment rights.
Brian Casey, acting as Chief of Police was the
final policymaker for City of Newberg as to
officer conduct and he knowingly ratified and
approved of deputies excessive force without
reasonable suspicion or probable cause that a
crime had been committed or a danger existed.
In the alternative, there exists a custom,
unwritten policy or practice to use excessive
force on citizens based on prior tort claims and
actions against Miller and other Newberg officers.
Compl. at
~~
23-25.
Defendants, in turn, assert Plaintiff has
not sufficiently stated a claim for Monell liability against the
City of Newberg.
In AE ex rel. Hernandez v. County of Tulare the Ninth
Circuit addressed the level of pleading sufficient to state a
claim under Monell in light of the Supreme Court's decisions in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
20 - OPINION AND ORDER
v. Iqbal, 556 U.S. 662 (2009) . 1
2012).
666 F.3d 631,
636-37 (9th Cir.
The court noted:
In the past, our cases have not required parties
to provide much detail at the pleading stage
regarding such a policy or custom.
"In this
circuit, a claim of municipal liability under
§ 1983 is sufficient to withstand a motion to
dismiss even if the claim is based on nothing more
than a bare allegation that the individual
officers' conduct conformed to official policy,
custom, or practice."
[Whitaker v. Garcetti, 486
F.3d 572, 581 (9th Cir. 2007)] (citation and
internal quotation marks omitted).
* * *
[After Twombly and Iqbal, however, ]
. "to be
entitled to the presumption of truth, allegations
in a complaint .
. may not simply recite the
elements of a cause of action, but must contain
sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to
defend itself effectively.
Second, the factual
allegations that are taken as true must plausibly
suggest an entitlement to relief, such that it is
not unfair to require the opposing party to be
subjected to the expense of discovery and
continued litigation."
Hernandez,
666 F.3d at 637
(quoting Starr v. Baca, 652 F.3d 1202
(9th Cir. 2011)).
Plaintiff's allegations in his Monell claim may have
satisfied the pre-Twombly/Iqbal standard.
See Hernandez,
666
F.3d at 638 n.6 ("[A]t the time [the district court] denied [the
1
Although Twombly and Iqbal address the pleading standard
for a Motion to Dismiss under Rule 12(b) (6), the Ninth Circuit
has held a Rule 12(c) motion is "functionally identical to a Rule
12(b) (6) motion to dismiss for failure to state a claim, and
therefore the same legal standard applies." Cafasso, 637 F.3d at
1055 n.4.
21 - OPINION AND ORDER
plaintiff] leave to amend, our precedent required no more than
the allegation that the government officials acted pursuant to an
established policy or custom.").
Plain~iff's
allegations,
however, do not satisfy the current pleading standard because
they do not include sufficient allegations of underlying facts to
give fair notice to Defendants or to enable Defendants to defend
themselves effectively.
In addition, Plaintiff's factual
allegations underlying his Monell claim, even when viewed as
true, do not "plausibly suggest an entitlement to relief."
Accordingly, the Court grants Defendants' Motion for.
Judgment on the Pleadings as to Plaintiff's Monell claim.
The
Court, however, grants Plaintiff leave to file an Amended
Complaint to cure the deficiencies of his Monell claim.
CONCLUSION
For these reasons, the Court GRANTS Defendants'
for Judgment on the Pleadings.
Motion (#8)
The Court also GRANTS Plaintiff
leave to file an Amended Complaint no later than October 9, 2015,
only (1) to the extent that Plaintiff can allege negligence based
on a separate set of facts or allege a claim for negligence
specifically in the alternative to his
§
1983 claims and (2) to
cure the deficiencies of his Monell claim as set out in this
Opinion and Order.
Plaintiff is advised that failure to file an
Amended Complaint will result in dismissal of this matter with
22 - OPINION AND ORDER
prejudice.
IT IS SO ORDERED.
DATED this 18th day of September, 2015.
ANNA J. BROWN
United States District Judge
23 - OPINION AND ORDER
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