UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
January 25, 2005
VERONICA FLUELLING, PLAINTIFF(S),
CITY OF MILPITAS, ET AL., DEFENDANT(S).
The opinion of the court was delivered by: Joseph C. Spero United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT AND TO STRIKE PORTIONS THEREOF (FRCP 12(b)(6) AND (e)) [Docket No. 10]
Defendants have filed a Motion to Dismiss, or in the Alternative, for a More Definite Statement and to Strike Portions Thereof (FRCP 12(b)(6) and (e)) (the "Motion"). A hearing was held on January 14, 2004, at 9:30 a.m. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.*fn1
On September 3, 2004, Plaintiff filed a complaint against the City of Milpitas and the Milpitas Police Department alleging violations of her civil rights. On October 20, 2004, Defendants filed the Motion. Plaintiff responded by filing an amended complaint and an opposition to the Motion. At a case management conference held on December 3, 2004, the parties stipulated that Defendants would not file an amended motion, but rather, that Defendants would respond to any new issues raised by the amended complaint in their Reply brief.
Plaintiff's original complaint is based on an incident involving officers of the Milpitas Police Department alleged to have occurred on October 23, 2003. In Plaintiff's amended complaint, she describes this incident as follows:*fn2
Plaintiff alleges on October 23, 2004, she rented a car from Enterprise Car Rental and drove to Milpitas Mall from a long exhausting trip. She was in intense pain, nauseated and needed to go to a public restroom for a medical emergency, which was in close proximity to the Outback Restaurant in front of the Great Mall movie theater.
Plaintiff states the one officer approached her as she was getting out the car, and told her that he had a report that I was driving a red stolen car and an expired licensee [sic]. Plaintiff was asked to produce her licensee [sic] and registration, which she indicated, but she was nauseated and was vomiting, and needed to go to the bathroom, and that she was a diabetic. She further instructed the police officer, that it was in her trunk of car, and that she would provide her keys, if he would allow her to go to the restroom, so that she would not soil her clothes and the interior of the car. Shortly, she was surrounded by five police officers with battle gear, which shocked plaintiff, since she was attempting to respond to the officer. Plaintiff requested that a female officer accompanied her to the restroom, since she was in pain and agony, but was denied. Officer Thompson stated that if I moved one inch that "you will go to jail this night." Plaintiff started to cry from the discomfort and lifted her dress in public and hundreds of people to urinate in public. Plaintiff requested that Officer Thompson contact Chief of Police Robert Nichellini who was her former law school professor. Plaintiff was then able to secure the registration and driver's licensee [sic] who proved that the car was not stolen and her licensee [sic] was not expired. Plaintiff sought medical treatment from emergency hospital and medical staff coupled with assistance for therapy treatment for anxiety disorders from this horrible mentally taxing incident.
First Amended Complaint ("FAC") at 1-2. In the original complaint, Plaintiff asserts the following purported claims: 1) "False Imprisonment;" 2) "Interference with Federal Constitutional Rights;" 3) "Torts;" and 4) "Damages." In her discussion of the claim for "Interference with Federal Constitutional Rights," Plaintiff cites to 42 U.S.C. § 1983 and the Fourteenth Amendment of the United States Constitution. In the section of the complaint entitled "Compensatory Damages," Plaintiff appears to assert claims for battery and intentional infliction of emotional distress. Plaintiff seeks "Compensatory, Special, General, Non-Economic and Punitive" damages. Complaint at 7.
In the Motion, Defendants assert that the complaint must be dismissed, in its entirety, for lack of clarity. Motion at 2. Alternatively, Defendants request that Plaintiff be required to amend her complaint, pursuant to Rule 12(e) of the Federal Rules of Civil Procedure to provide a clearer statement of her claims. Motion at 2. Defendants also identify a number of specific deficiencies which they argue require that certain portions of the complaint be stricken or dismissed.
First, Defendants assert that the claim entitled "Interference with Federal Constitutional Rights" must be dismissed because Plaintiff, while citing to 42 U.S.C. § 1983, has not clearly identified which constitutional amendment has allegedly been violated. Motion at 6. As a result, Defendants argue, they are unable to determine whether or not they may be entitled to assert a defense of qualified immunity. Id.
Second, Defendants assert that "it appears that plaintiff attempts to assert some sort of independent liberty violation, based solely upon the Fourteenth Amendment." Motion at 7. Defendants argue that such a claim must fail under Graham v. Connor, 490 U.S. 386, 394 (1989). In that case, the Court held, in the context of a § 1983 claim, that all claims alleging excessive force by a law enforcement officer in the course of an investigatory stop are governed by the Fourth Amendment "reasonableness" standard rather than the substantive due process requirement of the Fourteenth Amendment. 490 U.S. at 395.
Third, Defendants assert that Plaintiff's "Damages" claim should be dismissed because it does not state any claim and moreover, because Defendants may not be subjected to punitive damages. Defendants cite to California Government Code § 818, prohibiting the imposition of punitive damages against public entities. Defendants also cite to City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981), in which the Court held that municipalities are immune from punitive damages for claims under 42 U.S.C. § 1983.
In response to the Motion, Plaintiff filed an Opposition brief and a First Amended Complaint. The Opposition brief lists some of the rules and standards that apply to Rule 12 motions but does not address the specific arguments raised in the Motion. Rather, Plaintiff seeks to address these arguments in her amended complaint, which includes additional factual allegations and, possibly, new claims. The amended complaint also includes lengthy arguments with extensive citation to various legal authorities.
In her First Amended Complaint, Plaintiff repeats the allegations regarding the October 23, 2003 incident with only minor modification. Plaintiff also includes new allegations regarding thefts that allegedly occurred in July 2002 ("the Santa Clara theft") and on February 23, 2003 ("the San Francisco theft"), which Plaintiff alleges reveal a conspiracy on the part of Defendants to deprive her of her civil rights. FAC at 18-21, 23-24, According to Plaintiff, the July 2002 theft was investigated by the Milpitas Police Department, who uncovered information establishing that the theft was committed by Selena Rodriguez and Marcella Morrison, yet both the Milpitas Police Department and the Santa Clara District Attorney refused to prosecute these individuals. Plaintiff further alleges that she reported a February 23, 2003 theft to the Ingleside Police Department, resulting in four visits by police officers, but that when she tried to obtain incident reports from the San Francisco Police Department documenting these visits, no reports were found. FAC at 25. Plaintiff alleges that this "may be part of the Conspiracy to erase all police records" regarding the theft. Id. At oral argument, Plaintiff stipulated that the allegations regarding the alleged thefts were intended only to support Plaintiff's conspiracy claim and not to assert any new civil rights claims.
Although the First Amended Complaint alludes to numerous statutes and potential theories of liability, the Court construes the First Amended Complaint as attempting to allege the following claims: 1) False Imprisonment; 2) Intentional Infliction of Emotional Distress; 3) 42 U.S.C. § 1981; 4) 42 U.S.C. § 1983 based on violation of Plaintiffs' Fourth and Fourteenth Amendment rights; 5) Conspiracy to violate constitutional rights under 42 U.S.C. § 1983; 6) Substantive Due Process under the Fourteenth Amendment of the United States Constitution; 7) Title VI of the Civil Rights Act of 1964; and 6) Title VII of the Civil Rights Act of 1964.*fn3 At oral argument, Plaintiff stipulated that this is a complete list of the claims asserted her First Amended Complaint and that she is not asserting any other claims in this action. Plaintiff reiterates her demand for punitive, as well as other types of damages, and states that she is now seeking equitable and injunctive relief as well.
In their Reply brief, Defendants repeat their earlier arguments. They assert that as to the claim for "Interference with Federal Constitutional Rights," "plaintiff's Complaint in its current form fails to identify a single provision of the U.S. Constitution she alleges defendant to have violated." Reply at 3. Defendants note that Plaintiff has not provided any authority in support of asserting an independent Fourteenth Amendment claim. Nor, they argue, has she provided authority in support of her request for punitive damages. Defendants assert that rather than providing a clearer statement of her claims, Plaintiff has merely increased the confusion by adding potential theories of liability and "go[ing] off on new, unintelligible tangents." Reply at 4. In their Reply, Defendants do not specifically address the new factual allegations, asserting that the Court need not consider new facts alleged in response to a motion to dismiss.
A. Legal Standard
In addressing a motion to dismiss under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). In addition, we construe pro se pleadings liberally on a defendant's motion to dismiss for failure to state a claim. Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir.1996). A court need not, however, "accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell, 266 F.3d at 988. A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Id.
Under Rule 12(e), the court may require that a plaintiff provide a more definite statement where the complaint is "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed. R. Civ. P. 12(e).
B. Plaintiff's Claims
Plaintiff, proceeding pro se, has attempted to assert various claims under state and federal law. Although her First Amended Complaint is not a model of clarity, at least one of the incidents -- the October 23, 2003 incident -- is set forth in a relatively straightforward manner. Further, a number of claims that might apply have been articulated. Thus, it is the task of the Court to determine which claims may proceed and to dismiss those that are deficient, thereby providing Defendants with sufficient clarity to respond to the First Amended Complaint. Accordingly, the Court addresses below all of the potential claims that it identified above as being asserted in the First Amended Complaint, that is: 1) False Imprisonment; 2) Intentional Infliction of Emotional Distress; 3) 42 U.S.C. § 1981; 4) 42 U.S.C. § 1983 based on violation of Plaintiffs' Fourth and Fourteenth Amendment rights; 5) Conspiracy to violate constitutional rights under 42 U.S.C. § 1983; 6) Substantive Due Process under the Fourteenth Amendment of the United States Constitution; 7) Title VI of the Civil Rights Act of 1964; and 8) Title VII of the Civil Rights Act of 1964.
1. False Imprisonment
Plaintiff alleges in her First Amended Complaint that she was falsely imprisoned when officers of the Milpitas Police Department stopped her, "surrounded her with battle gear" and prevented her from using the bathroom after being told Plaintiff was a diabetic and was having a medical emergency. Defendants do not identify any deficiency with respect to this claim. The Court concludes that Plaintiff's allegations state a claim for false imprisonment.
Under California law, a police officer may be held liable for false imprisonment. Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757 (1997) (citing to Cal. Gov't Code § 820.4). False imprisonment is the "unlawful violation of the personal liberty of another." Id. To establish false imprisonment, a plaintiff must prove the following elements: "(1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief." Easton v. Sutter Coast Hospital, 80 Cal. App. 4th 485, 496 (2000). Here, Plaintiff's allegations regarding the October 23, 2003 incident are sufficient to state a claim for false imprisonment.
2. Intentional Infliction of Emotional Distress
Although Plaintiff does not explicitly assert a cause of action for intentional infliction of emotional distress in her First Amended Complaint, she stated at oral argument that it was her intent to assert such a claim.*fn4 Reading the First Amended Complaint liberally, as is required where a plaintiff is appearing pro se, the Court concludes that Plaintiff has sufficiently alleged a claim for intentional infliction of emotional distress.
Under California law, the following elements must be established to prevail on a claim for intentional infliction of emotional distress:
(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress.
Cervantez v. J.C. Penney, 24 Cal. 3d 579, 593 (1979). Plaintiff alleges that the actions of the police officers on October 23, 2003 were "egregious" and done with "intentional disregard of the interests of an African-American female." First Amended Complaint at 5. Plaintiff further alleges that she "has sought medical treatment from emergency hospital and medical staff coupled with assistance for therapy treatment for anxiety disorders from this horrible mentally taxing incident." Id. at 2. These allegations are sufficient to state a claim for intentional infliction of emotional distress.
3. 42 U.S.C. § 1981
Plaintiff asserts a claim under 42 U.S.C. § 1981 "on a respondeat superior basis for the racially motivat[ed] misconduct on [sic] its police officers." First Amended Complaint at 5. Plaintiff goes on to allege that Defendants "maintain a policy pattern and practices of targeting African-Americans and Latinos in conducting stops, detentions, interrogations and searches of motorists." Id. The Court concludes that Plaintiff states a claim under § 1981.*fn5
Section 1981 guarantees that no person shall be denied equal rights under the law on account of race. The Ninth Circuit has held that while there is no respondeat superior liability under § 1981, a plaintiff may establish liability on the part of a municipality if it can be shown that the injury resulted from a "policy or custom." Federation of African American Contractors v. City of Oakland, 96 F.3d 1204, 1215 (9th Cir. 1996) (holding that the Civil Rights Act of 1991 amended § 1981 to create an implied cause of action against municipalities, thereby overruling Jett v. Dallas Independent School District, 491 U.S. 598 (1989) on this question, and that the "policy and custom" requirement for § 1983 claims that was articulated in Monell v. New York Dep't of Social Services, 436 U.S. 658 (1978) also applies to § 1981 claims against state actors). Here, Plaintiff has alleged that she was targeted because of her race as part of a policy and practice on the part of the City of Milpitas. These allegations are sufficient to state a claim under § 1981.
3. 42 U.S.C. § 1983
Plaintiff alleges in her First Amended Complaint that her constitutional rights were violated under 42 U.S.C. § 1983. She goes on to discuss both the Fourth and the Fourteenth Amendments of the United States Constitution. The Court construes these allegations as an attempt to assert claims under § 1983 for violations of Plaintiff's Fourth Amendment right to be free from unreasonable detention or seizure and her Fourteenth Amendment right to substantive due process. Although Plaintiff's § 1983 claim based the Fourteenth Amendment fails, her claim based on the Fourth Amendment is sufficient to survive Defendants' Motion.
In Graham v. Connor, 490 U.S. 386, 388 (1989), the Court held that "a free citizen's claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other 'seizure' of his person . . . [is] properly analyzed under the Fourth Amendment's 'objective reasonableness' standard rather than under a substantive due process standard." In Graham, the plaintiff, Dethorne Graham, was a diabetic who was having an insulin reaction. Id. He asked a friend to drive him to a convenience store to buy some orange juice to counteract the reaction. Id. When he found a long line in the store, he quickly left and asked his friend to drive him to another friend's house. Id. at 389. A police officer who saw Graham enter and quickly leave the convenience store followed Graham and his friend and made an investigative stop. Id. Although Graham told the officer he was experiencing an insulin reaction, the officer told him to wait until he found out if anything had happened at the convenience store. Id. In the meantime, the officer called in backup units. Id. A number of other police officers arrived on the scene and Graham was handcuffed, shoved, and eventually thrown into a police car. Id. Although a friend of Graham's brought some orange juice to the car, the officers refused to let Graham have it. Id. Later, Graham was released when the officers learned that nothing had happened at the convenience store. Id.
Graham brought an action alleging excessive force in violation of 42 U.S.C § 1983 and the Fourteenth Amendment right to substantive due process. The Supreme Court held that the Fourth Amendment, rather than the Fourteenth Amendment was implicated, explaining:
Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims.
Id. at 395.
Similarly, Plaintiff's allegations in this action implicate the rights protected by the Fourth Amendment rather those guaranteed under the Fourteenth Amendment. Plaintiff's § 1983 claim is based on allegations that the manner in which the investigatory stop on October 23, 2003 was conducted was unreasonable. Thus, to the extent Plaintiff's First Amended Complaint purports to assert claims under § 1983 based on both the Fourth and the Fourteenth Amendments, only the former survives Defendants' Motion.
Finally, the Court notes that, as discussed above with respect to the § 1981 claim, Plaintiff has alleged that the violation of her constitutional rights was the result of a policy and custom by the City of Milpitas, thereby satisfying the requirements -- at least for pleading purposes -- set forth in Monell with respect to § 1983 claims against municipalities.
4. Section 1983 Conspiracy Claim
In her First Amended Complaint, Plaintiff alleges a § 1983 conspiracy claim based on allegations regarding two thefts described above and possibly also based on the October 23, 2003 incident. Plaintiff's conspiracy claim fails because, as to the thefts, Plaintiff has failed to allege a specific constitutional violation to support the conspiracy claim. In addition, Plaintiff has not alleged any specific facts that connect any of the incidents or show a meeting of the minds.
"To state a claim for conspiracy to violate one's constitutional rights under section 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy." Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989). To prove the existence of such a conspiracy, "an agreement or meeting of the minds must be shown." Fonda v. Gray, 707 F.2d 435, 437 (9th Cir. 1983) (citations omitted). In addition, in order to prevail on a claim for conspiracy to violate one's constitutional rights, a plaintiff must establish an actual constitutional violation. See Hoffman v. Halden, 268 F.2d 280, 295-296 (9th Cir. 1959) (explaining that in a civil conspiracy, in contrast to a criminal conspiracy, the damage flows from the overt acts and not from the conspiracy); see also Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999) (holding that in order to prevail on a § 1983 conspiracy claim, a plaintiff must establish an actual constitutional violation).
Plaintiff includes in her First Amended Complaint allegations concerning two thefts, and the actions (or inaction) of various officials, include police officers, district attorneys and senators. See First Amended Complaint at 18-21. The Court is unable to discern any allegation of a specific constitutional violation with respect to the two thefts. The gist of her complaint appears to be that: 1) the Milpitas Police refused to arrest Marcella Morrison and Selena Rodriguez after conducting an investigation of a theft reported by Plaintiff ("the Santa Clara theft"); 2) the Santa Clara District Attorney refused to prosecute these individuals for the same theft; and 3) the San Francisco Police Department was unable to locate incident reports for visits by the Ingleside Police Department following a separate theft reported by Plaintiff ("the San Francisco theft"); and 4) the San Francisco Police Department refused to investigate the Santa Clara theft on the basis that it was outside its jurisdiction, and referred Plaintiff to the Santa Clara District Attorney's office. None of these allegations clearly implicate a particular constitutional right, and Plaintiff has provided no additional factual allegations suggesting that any constitutional right was violated.
The only actual constitutional violation Plaintiff has alleged in connection with her conspiracy claim is the Fourth Amendment violation alleged in connection with the October 23, 2003 incident. Yet Plaintiff has not alleged any specific facts showing that there was an agreement or meeting of the minds between any of the actors involved in the various incidents or that connect the alleged thefts to the events of October 23, 2003. See Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 929 -930 (9th Cir. 2004) (affirming dismissal of § 1983 conspiracy claim where complaint was "devoid of any discussion of an agreement amongst the appellees to violate her constitutional rights").
Therefore, the conspiracy claim is dismissed for failure to state a claim.
5. Fourteenth Amendment Substantive Due Process Claim
In her First Amended Complaint, Plaintiff continues to assert a claim -- apparently independent of the § 1983 claim -- based on the Fourteenth Amendment right to due process, alleging that "there was a deprivation of recognized liberty regarding the October 23, 2003 incident . . . ." FAC at 33. As discussed above, this claim fails because under Graham, Plaintiff's allegations implicate the Fourth Amendment and not the Fourteenth Amendment. Therefore, this claim is dismissed for failure to state a claim.
6. Title VI of Civil Rights Act of 1964
Plaintiff alludes to Title VI of the Civil Rights Act of 1964 in her First Amended Complaint. Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Plaintiff has not alleged that any of the acts of which she complains were committed under a "program or activity receiving Federal financial assistance." Therefore, to the extent Plaintiff's First Amended Complaint may purport to assert a Title VI claim, that claim is dismissed for failure to state a claim.
7. Title VII of Civil Rights Act of 1964
Plaintiff appears to assert a claim under Title VII of the Civil Rights Act of 1964. Because Title VII is limited to discrimination in employment and Plaintiff alleges no employment relationship whatsoever with respect to any Defendant, Plaintiff does not state a claim under Title VII.
8. Punitive Damages
Defendants assert that the City of Milpitas may not be held liable for punitive damages on Plaintiff's state law claims or her § 1983 claim. Defendants are correct.
As a general rule, punitive damages may not be awarded against a municipality unless such damages are expressly authorized by statute. See Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-263 (1981). With respect to Plaintiff's state law cause of action for false imprisonment, Plaintiff does not cite, and the Court cannot find, any express authorization of punitive damages as to municipalities. To the contrary, California Government Code § 818 expressly precludes an award of punitive damages against a municipality based on oppression, fraud or malice. Similarly, it is well established that punitive damages against a municipality are not available under 42 U.S.C. § 1983. See Newports, 453 U.S. at 271. Therefore, Plaintiff's prayer for punitive damages should be deemed amended to exclude her state law and § 1983 claims against the City of Milpitas.*fn6
The Motion is GRANTED in part and DENIED in part, as follows: Plaintiff's First Amended Complaint states the following claims based on the factual allegations regarding the October 23, 2003 incident:1) False Imprisonment; 2) Intentional Infliction of Emotional Distress; 3) 42 U.S.C. § 1981; and 4) 42 U.S.C. § 1983 based on violation of Plaintiff's Fourth Amendment rights.
The following claims asserted in Plaintiff's First Amended Complaint fail to state a claim: 1) 42 U.S.C. § 1983 based on violation of Plaintiffs' Fourteenth Amendment rights; 2) Conspiracy to violate constitutional rights under 42 U.S.C. § 1983; 3) Substantive Due Process under the Fourteenth Amendment of the United States Constitution; 4) Title VI of the Civil Rights Act of 1964; and 5) Title VII of the Civil Rights Act of 1964. There is no indication in the record before this Court, or in Plaintiff's statements at oral argument, that she knows of any additional facts suggesting that Plaintiff will be able to amend these claims to state a claim. Accordingly, these claims are dismissed with prejudice.
IT IS SO ORDERED.