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Pimentel v. County of Sonoma

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


May 23, 2005

DAVID WILLIAM PIMENTEL, PLAINTIFF,
v.
COUNTY OF SONOMA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Defendants City of Petaluma, Mike Pierre and John Antonio (collectively, City Defendants) and County of Sonoma, Dave Tait, John Buergler, Mike Middleton, Shawn Murphy and Mittenthal (collectively, County Defendants) have moved to dismiss Plaintiff David William Pimentel's complaint under Federal Rule of Civil Procedure 12(b)(6), or in the alternative for a more definite statement pursuant to Rule 12(e). Defendants also move to strike attachments to Plaintiff's complaint. Plaintiff, appearing pro se, opposes the motions and moves for sanctions against City Defendants.

Having considered all of the papers filed by the parties, the Court grants Defendants' motions to dismiss and for a more definite statement, and grants Defendants' motion to strike the attachments to Plaintiff's complaint. The Court grants Plaintiff leave to file an amended complaint and denies his motion for sanctions.

BACKGROUND

Plaintiff filed his original complaint on August 5, 2004. He brings suit on federal and State law claims arising from an incident that occurred on August 6, 2002. According to his complaint, while hunting wild game on or near vacant land, Plaintiff was "attacked with weapons," including a taser, by Deputy Sheriff Defendants Tait and Buergler. Complaint ¶¶ 28 and 31. Defendants allegedly wrongfully charged Plaintiff with crimes in order to cover up the assault. Id. ¶ 43. Plaintiff alleges that, as a result of the attack by Tait and Buergler, he was airlifted to a hospital for emergency medical treatment.

Id. ¶ 33.

Plaintiff's complaint lists nine "cause of action," but refers to many different potential claims under each subheading. The causes of action are generally brought against all Defendants. Plaintiff's first cause of action recounts the alleged assault and appears to be based on various California penal code provisions as well as rights guaranteed by the "First, Fourth, Fifth, Eighth, and Fourteenth" Amendments to the United States Constitution. The second cause of action alleges a State law claim for false reporting of a crime, based on various State penal code provisions. The third cause of action alleges that Defendants deprived and conspired to deprive

Plaintiff of various federal constitutional rights, including under the Fourth, Fifth, Sixth and Eighth Amendments. The fourth cause of action concerns Defendants' alleged failure to train and supervise employees properly so as to comply with various State penal code provisions. The fifth cause of action charges that Defendants' use of excessive force resulted in deprivation of Plaintiff's right to be free of unreasonable search and seizure and right to equal protection. The sixth cause of action alleges that Defendants intentionally inflicted pain and suffering upon Plaintiff. The seventh cause of action alleges that Defendants' acts violated the Eighth Amendment's prohibition on cruel and unusual punishment. The eighth cause of action alleges that Defendants' acts violated the California penal code's prohibition on torture. The final cause of action alleges that Defendants have spent public monies on tasers, and that this violates California Penal Code § 244.5(b), which provides criminal penalties for assault with a stun gun or taser.

City Defendants, joined by County Defendants, move for dismissal of Plaintiff's § 1983 claims against them as barred by the statute of limitations and for failure to plead municipal liability, and in the alternative for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). Defendants move for dismissal of Plaintiff's State law claims against them for lack of jurisdiction or for failure to demonstrate the statutory basis for his claims. In addition, County Defendants move for dismissal of Plaintiff's complaint as barred in part by his convictions arising from the August 6, 2002 incident; for dismissal of most of Plaintiff's constitutional claims for failure to state a cognizable claim; for dismissal of Plaintiff's equal protection claim(s) for failure to plead certain requisite facts; and for dismissal of Plaintiff's claims under the California Penal Code. County Defendants also move to strike attachments to the complaint.

LEGAL STANDARD

A motion to dismiss for failure to state a claim will be denied unless it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Falkowski v. Imation Corp., 309 F.3d 1123, 1132 (9th Cir. 2002), citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." Fed. R. Civ. P. 8(e). These rules "do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds on which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).

When granting a motion to dismiss, a court is generally required to grant a plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment would be futile, a court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). Leave to amend should be liberally granted, but an amended complaint cannot allege facts inconsistent with the challenged pleading. Id. at 296-97.

DISCUSSION

I. Plaintiff's Federal Claims

Plaintiff alleges that Defendants have violated various rights guaranteed to him under Amendments to the United States Constitution. Such an action is necessarily premised on 42 U.S.C. § 1983, which provides a cause of action against municipal actors for violation of constitutional rights. See Complaint ¶ 2 (referring to § 1983); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) ("a litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution"). County and City Defendants assert that any § 1983 claims are barred by the statute of limitations, that Plaintiff has failed to allege facts sufficient to support tolling of the statute of limitations, and that Plaintiff fails to plead municipal liability under Monell v. New York Dep't of Social Services, 436 U.S. 658, 690-91 (1978).

A. Statute of Limitations

When the incident giving rise to Plaintiff's complaint occurred on August 6, 2002, claims brought under § 1983 in California were subject to a one-year statute of limitations. See McCoy v. City and County of San Francisco, 14 F.3d 28, 29 (9th Cir. 1994) (statute of limitations for civil rights claims under 42 U.S.C. § 1983 in California is one year from the date that plaintiff knew or had reason to know of the injury which is the basis of the action); also compare Cal. Code Civ. P. § 340(3) (1982) (providing one year limitations period for personal injury claims) with Cal. Code Civ. P. § 335.1 (2002; effective January 1, 2003) (providing two year limitations period for personal injury claims).

Plaintiff does not dispute that he knew or had reason to know of his injury on August 6, 2002. Accordingly, the statute of limitations for Plaintiff's § 1983 claims against City and County Defendants began to run on August 6, 2002, and expired, barring tolling, on August 6, 2003, almost a year before Plaintiff filed his complaint in this action.

Plaintiff argues that he should be able to avail himself of the California legislature's decision to extend the statute of limitations period for personal injury suits. As the Ninth Circuit has explained, Under California law, an extension of a statute of limitations will not apply to claims already barred under the prior statute of limitations unless the Legislature explicitly provides otherwise. . . . In enacting the new two-year statute of limitations, the California Legislature made it applicable retroactively only to the victims of the terrorist attacks of September 11, 2001.

Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004) (citing Douglas Aircraft Co. v. Cranston, 58 Cal. 2d 462 (1962) and 2002 Cal. Legis. Serv. Ch. 448, § 4 (S.B. 688) (West)). Because Plaintiff was not a victim of the terrorist attacks, he cannot benefit retroactively from the extension of the statute of limitations.

Plaintiff also argues that he is entitled to tolling of the statute of limitations pursuant to California Code of Civil Procedure § 352.1(a), due to his incarceration from August 6, 2001 until October 31, 2004. Pl.'s Opp. at 15. Section 352.1(a) provides that a person entitled to bring a civil action is subject to a legal disability that tolls the statute of limitations for up to two years if he or she is imprisoned on a criminal charge at the time the cause of action accrued, subject to certain conditions.

Plaintiff did not plead in his complaint or submit admissible evidence that would support his claim of legal disability pursuant to § 352.1(a). His assertion in his opposition that he was incarcerated until October 31, 2004, does not constitute evidence sufficient to support tolling.

Even if the statute of limitations on Plaintiff's § 1983 claims were tolled due to incarceration, this tolling would not apply to an action for relief other than damages. Cal. Code Civ. P. § 352.1(c). Therefore, Plaintiff cannot maintain his claim for injunctive relief, insofar as it relates to his § 1983 claims. See Complaint ¶ 89.

Plaintiff's federal claims against Defendants are dismissed with leave to file an amended complaint to allege, if he can truthfully do so without contradicting the original complaint, that he was incarcerated so as to toll the statute of limitations for his § 1983 damage claims. Plaintiff's first amended complaint (FAC) may not demand any relief other than damages in connection with his federal Constitutional claims.

B. Municipal Liability

Defendants also argue that Plaintiff has failed to state claims against the City and the County under § 1983 because he has failed properly to allege municipal liability under Monell v. New York Dep't of Social Services, 436 U.S. 658, 690-91 (1978).

To prevail on a § 1983 claim against a municipality, a plaintiff must show: (1) that he suffered a deprivation of a constitutionally protected interest; and (2) that the deprivation was caused by an official policy, custom or usage of the municipality. See Monell, 436 U.S. at 690-91; see also City of Canton v. Harris, 489 U.S. 378, 390-91 (1989). Municipal liability based on unconstitutional acts of municipal employees cannot be established on the basis of respondeat superior, but rather requires proof that the harm was caused by the policy or custom of the municipality. See Monell, 436 U.S. at 694. While the liability of municipalities does not depend upon the liability of individual officers, it is contingent on a violation of constitutional rights. See Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994), cert. denied, 515 U.S. 1159 (1995).

Plaintiff correctly notes in his opposition that a heightened pleading standard is not required for § 1983 claims. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993); see also Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988). Here, however, Defendants raise a more basic concern regarding the comprehensibility of the complaint. Defendants cannot reasonably be expected to frame responsive pleadings because it is not clear which of his § 1983 claims Plaintiff alleges are based on an official policy, custom or usage of a municipality. Plaintiff refers in his complaint both to liability based on official policy, custom or usage (see, e.g., ¶ 54, alleging that Defendants generally "permitt[ed] the policy and custom of using unreasonable force to exist"), which is permissible, and liability based on respondeat superior (see, e.g., ¶ 41, alleging that all "defendants, their agents, servants and employees" assaulted Plaintiff), which is not.

Accordingly, Plaintiff's federal claims brought under § 1983 against the City and the County are dismissed for failure to state a claim, to the extent that they are based on the doctrine of respondeat superior. To the extent that these claims are based on acts taken in accordance with official policy, custom or usage, the Court grants Defendants' motion for a more definite statement. Plaintiff is granted leave to file an amended complaint against the City and the County, provided he can allege that the deprivations of his constitutionally protected interests were caused by an official policy, custom or usage of the City or the County or both.

Plaintiff must include in his first amended complaint (FAC) separate counts for each violation of § 1983 by each Defendant or group of similarly situated Defendants. A single federal constitutional right that was violated shall be specified for each separate claim. Each count must include a short and plain statement of the allegedly unlawful acts that comprise the claim in question, and specifically who committed them. Plaintiff may not refer generally to "Defendants." For each § 1983 count against the City or the County, Plaintiff must allege the specific official policy, custom or usage that was followed. Plaintiff may not allege that the City or the County is vicariously liable for the constitutional torts of their employees.

C. Equal Protection Claims

The County Defendants, joined by the City Defendants, specifically ask the Court to dismiss Plaintiff's claims for violation of the Fourteenth Amendment's Equal Protection Clause, on the grounds that Plaintiff has failed to allege facts sufficient to state a claim.

The Equal Protection Clause of the Fourteenth Amendment "commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). A plaintiff alleging denial of equal protection must plead intentional unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory intent. Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1026 (9th Cir. 1998).

Plaintiff has alleged no facts which raise an inference of a discriminatory motive on the part of Defendants, or that similarly situated people were treated differently. Accordingly, Plaintiff's equal protection claims are dismissed. If Plaintiff can truthfully do so without contradicting the original complaint, he may include equal protection violations in his amended complaint by alleging facts showing that similarly situated people were treated differently.

II. Federal Jurisdiction to Review State Convictions

Defendants argue that Plaintiff's § 1983 claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994) and his State tort claims are barred under Susag v. City of Lake Forrest, 94 Cal. App. 4th 1401 (2002).

In Heck, the Supreme Court held that if a decision in a § 1983 civil action will necessarily imply the invalidity of a State court conviction or sentence, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck, 512 U.S. at 487; see also Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005), petition for cert. filed, 73 U.S.L.W. 3632 (U.S. Apr. 11, 2005) (No. 04-1374) (emphasizing that the "relevant question [under Heck] is whether success in a subsequent § 1983 suit would 'necessarily imply' or 'demonstrate' the invalidity of the earlier conviction or sentence"). "But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." Id. (emphasis in original). The policy behind this rule is one of promoting finality and consistency in court judgments. Id. at 485.

The California Court of Appeal in Susag, following Heck, has held that an intact conviction precludes recovery on the basis of State tort claims. Susag, 94 Cal. App. 4th at 1412-1413. In that case, the court found that the plaintiff's standing conviction for resisting or obstructing a police officer barred claims for assault and battery, intentional infliction of emotional distress and false imprisonment arising out of the police officers' conduct.

The Court grants Defendants' request for judicial notice of the State court docket for Plaintiff's criminal case. The docket shows that certain criminal charges against Plaintiff were already pending as of August 6, 2002, based on an incident in July of that year. Request for Judicial Notice, Ex. A, Criminal Docket at 1. On August 8, 2002, additional charges were filed against Plaintiff. Id. at 6. Plaintiff was convicted following a plea of nolo contendere and the court's finding of guilt on three counts, relating to charges filed on August 8, for violation of Penal Code Sections 69 (felony obstruction of an officer with violence),*fn1 12021(a)(1) (felony possession of a firearm) and 243(c)(2) (felony battery on an officer). Id. at 13. Plaintiff appealed, and his conviction was affirmed. Id. at 15.

Plaintiff's claims for false arrest, false imprisonment, the "filing of false reports" and malicious prosecution are barred by Heck and Susag. The fact that Plaintiff plead nolo contendere does not, contrary to Plaintiff's contention, render his conviction inadmissible for purposes of determining whether a Heck bar applies. See Smith, 394 F.3d at 699 n.5 (contemplating applicability of Heck where § 1983 plaintiff has either "pled guilty or entered a plea of nolo contendere"). Consideration of these claims would necessarily entail review of Plaintiff's conviction itself, which the Court lacks jurisdiction to do. Therefore, these claims are dismissed with prejudice.

With respect to Plaintiff's other claims, e.g., use of excessive force, the criminal docket and Plaintiff's complaint lack sufficient detail to enable the Court to determine the applicability of Heck and Susag. "In California, the lawfulness of an officer's conduct is an essential element of the offense of resisting, delaying or obstructing a police officer," and excessive force used at the time of arrest is not within the officer's duty. Smith, 394 F.3d at 695 (internal citations omitted). However, as Smith makes clear, a conviction in which the lawfulness of the officer's conduct was an essential element does not necessarily mean that a plaintiff's claims based on that incident are barred, because, for instance, defendants could have used excessive force before or after, rather than in the course of, the events on which the plaintiff's conviction was based. Id. at 696. The court in Smith further explained that the plaintiff does not bear the burden to show that a favorable § 1983 finding would not necessarily imply the invalidity of the conviction. 394 F.3d at 699 n.5 (citing Sanford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001)). Defendants' attempt to distinguish Smith on the facts is unavailing in the context of their motion to dismiss.

If Plaintiff includes a claim of excessive force in his amended complaint, he must specify whether his claim arises out of events occurring before or after the events on which his conviction is based, or both. The factual basis for such claims of excessive force, if any, must be set forth separately. Plaintiff may not bring any claim of excessive force allegedly used against him during the course of the events on which his conviction is based, as such a claim is barred by Heck.

III. Plaintiff's State Law Claims

Defendants move to dismiss Plaintiff's State law claims on the grounds that no federal claims remain in this suit. Because the Court is allowing Plaintiff to file an amended complaint in order to re-plead some of his federal claims, Defendants' motion to dismiss on this ground is denied. If, upon filing of a FAC, the Court finds that Plaintiff still has failed to state a federal claim, the Court will dismiss any remaining State law claims without prejudice to refiling in State court.

Defendants move to dismiss Plaintiff's State law claims against the City and the County on the grounds that he has failed to meet applicable pleading requirements and cannot state claims based on violations of the California Penal Code.

A. Failure to Meet State Pleading Requirements for Tort Claims

Plaintiff appears to bring certain State law tort claims against Defendants, including the City and the County. See, e.g., Complaint ¶ 63 (alleging inter alia false arrest, assault and battery); ¶¶ 70-72 (intentional infliction of pain and suffering).

The California Tort Claims Act provides that a public entity is not liable for injuries caused by it or its employees, except as provided by statute. Cal. Gov't Code § 815. Defendants argue that Plaintiff must plead "'with particularity, '[e]very fact essential to the existence of statutory liability.'" Keyes v. Santa Clara Valley Water Dist., 128 Cal. App. 3d 882, 886 (1982), quoting Susman v. City of Los Angeles, 269 Cal. App. 3d 803, 809 (1969). However, Defendants do not explain which such facts Plaintiff must plead. Significantly, Plaintiff has already plead that he complied with the government claims presentation requirement, though he does not label this allegation as such. See Complaint ¶¶ 19-20 (alleging that Plaintiff presented Defendants County of Sonoma and City of Petaluma with notice of his claims on February 5, 2003).

To the extent that Defendants argue that Plaintiff has failed to meet the requirements of Fed. R. Civ. P. 8(e), however, Defendants' argument is well-taken. Plaintiff's State tort claims are even less easily discernable than Plaintiff's § 1983 claims. In his FAC, Plaintiff therefore must list as a separate claim each separate State law tort that he alleges was committed, and the specific enactment under which Plaintiff seeks recovery. Each count must include a short and plain statement of the allegedly unlawful acts that comprise the claim in question, and specifically who committed them. Plaintiff may not bring claims that are barred by Susag.

B. Penal Code Violations

Plaintiff makes numerous references to alleged violations of the California Penal Code. See, e.g., Eighth Cause of Action, alleging violation of prohibition against torture. These Penal Code provisions do not provide Plaintiff with a private right of action to sue Defendants. Though Plaintiff correctly notes that Penal Code does not exclude civil remedies unless specified, see Penal Code § 9, Penal Code provisions do not in themselves establish the availability of a civil remedy. Therefore, Plaintiff's causes of action under the California Penal Code are dismissed with prejudice.

IV. Defendants' Motion to Strike

Plaintiff attached to his complaint a "verification" in which he swears that the information he provided in his complaint is true, and a sworn declaration of a third party, Tony Avila Sampson, containing Sampson's opinions about Defendant Sonoma County Sheriff's Department Narrative/Statement regarding the events of August 6, 2002. Defendants move to strike the former as redundant and immaterial, and the latter as immaterial.

The Court grants Defendants' motion to strike the Sampson Declaration but denies the motion to strike Plaintiff's declaration. Plaintiff's sworn oath verifies his complaint. The Sampson Declaration, however, is immaterial because evidence is not needed to support a complaint at this stage; Sampson's opinions about the Sheriff's report are not relevant; and there is no support for Plaintiff's contention that Sampson qualifies as an expert in any relevant matter.

CONCLUSION

For the foregoing reasons, City Defendants' motion to dismiss and for a more definite statement is GRANTED (Docket No. 5), and Plaintiff's motion for sanctions against City Defendants is DENIED (Docket No. 14). County Defendants' motion to dismiss is GRANTED (Docket No. 18) and the motion to strike attachments to the complaint is granted in part and denied in part, as described above (also Docket No. 18). The Court GRANTS Defendants' request for judicial notice of the criminal docket for Plaintiff's criminal case (Docket No. 20). Plaintiff's claims under the California Penal Code, as well as his State law tort claims for false arrest, false imprisonment, filing of false reports and malicious prosecution, are dismissed with prejudice. Plaintiff's remaining claims are dismissed with leave to file an amended complaint. Plaintiff may file his amended complaint conforming with this order within thirty days from the date of this order.

In his amended complaint, Plaintiff must provide a separate section for each cause of action and include within each section the factual allegations giving rise to each claim. Plaintiff may only re-plead his § 1983 claims if he is able truthfully, without contradicting the original complaint, to allege facts sufficient to support the legal disability of incarceration. If Plaintiff wishes to bring any § 1983 claims against the City or the County, he must allege the specific official policy, custom or usage that was followed by an employee of that entity. If Plaintiff wishes to bring any equal protection claims, he must allege facts sufficient to show that Defendants treated similarly situated people differently or to raise an inference of a discriminatory intent.

If Plaintiff wishes to bring a claim of excessive force in his amended complaint, he must specify whether his claim arises out of events that occurred before or after the events on which his conviction is based, or both. The factual basis for such claims of excessive force, if any, must be set forth separately. Plaintiff may not bring any claim for excessive force allegedly used against him during the course of the events on which his State court conviction is based, as such a claim is barred by Heck.

Plaintiff may not include any claims that were dismissed with prejudice. Plaintiff may not request any relief other than damages in connection with his § 1983 claims.

Failure to comply with these instructions may result in dismissal of Plaintiff's case.

IT IS SO ORDERED.


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