United States District Court, N.D. California
October 14, 2005.
SHELLY NEWTON, Plaintiff,
P. ARPAIA, et al., Defendants.
The opinion of the court was delivered by: SAUNDRA ARMSTRONG, District Judge
This matter comes before the Court on Defendants P. Arpaia, B.
Marker, and C. Costigan's Motion to Dismiss [Docket No. 18].
Having read and considered the arguments presented by the parties
in the papers submitted to the Court, the Court finds this matter
appropriate for resolution without a hearing. The Court hereby
GRANTS IN PART AND DENIES IN PART P. Arpaia, B. Marker, and C.
Costigan's Motion to Dismiss.
Plaintiff Shelly Newton ("Newton" or "Plaintiff") is an adult
female African American who currently resides in Contra Costa
County, California. FAC at ¶ 3.
Defendants P. Arpaia ("Arpaia"), B. Marker ("Marker"), and C.
Costigan ("Costigan") are members of the California Highway
Patrol ("CHP"), who, during the relevant period, were acting
under color of state law as peace officers within the State of
California. Id. ¶ 4.
On or about July 26, 2003, CHP Officers Arpaia and Marker
detained Plaintiff on Highway 24, in Contra Costa County, for an
alleged traffic violation. Id. ¶ 9. Officers Arpaia and Marker
issued Plaintiff a citation and notice to appear and released
Plaintiff from custody. Id. At the time of release, Arpaia and Marker informed Plaintiff that her license was suspended for an
out-of-state vehicle code violation. Id. ¶ 10. Plaintiff denied
she was ever in the state in question. Id.
Officers Arpaia and Marker advised Plaintiff that she could not
drive her vehicle away from the scene because her license was
suspended. Id. ¶ 11. They then called a tow truck for the
purpose of towing Plaintiff's vehicle to a storage facility.
Id. They subsequently advised Plaintiff that she could use the
shoulder of the highway to exit the highway on foot, but claimed
that they were required to escort pedestrians off of the highway
and to restrain them in handcuffs. Id. ¶ 12.
When Plaintiff objected to being handcuffed, Officers Arpaia
and Marker used force to handcuff Plaintiff and placed her in the
rear of their patrol vehicle. Id. ¶ 13. A hood was also placed
over Plaintiff's head. Id. ¶ 14. Officers Arpaia and Marker
then exited Highway 24 and were joined by CHP Officer Costigan.
Id. Officers Arapia and Marker then drove Plaintiff, who
remained handcuffed in the back of the vehicle, to the Martinez
Detention Facility. Id.
At the Martinez Detention Facility, Plaintiff was handcuffed to
a metal bench in the receiving bay. Id. Sheriff's Deputies
Steven Brinkley ("Brinkley"), Michelle Day ("Day"), and Kellie
Martinez ("Martinez") found Plaintiff handcuffed to the metal
bench and attempted to pull her away from the bench while she was
still handcuffed to it. Id. ¶ 15. Deputies Brinkley, Day, and
Martinez then took Plaintiff into a room, forced her to lie face
down on the floor, and removed Plaintiff's shoes and jewelry.
Id. ¶ 16. As a result of her detention, Plaintiff suffered
multiple injuries. Id. ¶ 17.
B. Procedural Background.
On July 21, 2004, Plaintiff filed a complaint against Contra
Costa County (referred to herein as the "July 2004 Complaint").
The July 2004 Complaint alleged the following causes of action:
(1) failure to train; (2) "custom, usage, and policy" violations
of 42 U.S.C. § 1983; (3) failure to supervise; (4) assault and
battery; and (5) excessive force. In the July 2004 Complaint,
Plaintiff sought compensatory and special damages. Plaintiff also
requested "leave to amend th[e] complaint when the identity and
capacity of the unidentified Sheriff Deputies is ascertained, for
leave to name them as parties Defendants herein, and leave to
seek punitive damages against them, jointly and severally." On March 24, 2005, Plaintiff filed a complaint (referred to
herein as the "March 2005 Complaint") against defendants Arpaia,
Marker, Costigan, Brinkley, Day and Martinez. The March 2005
Complaint alleged the following causes of action: (1) violations
of the Fourth and Fourteenth Amendments (brought against all
defendants pursuant to 42 U.S.C. § 1983); (2) "failure to
intercede" (brought against Costigan only pursuant to
42 U.S.C. § 1983); (3) violations of "California Civil Code Section 51-151.7"
(brought against all defendants); (4) assault and battery
(brought against all defendants); (5) false arrest (brought
against Arpaia and Marker only); and (6) false imprisonment
(brought against Arpaia and Marker only).
On April 20, 2005, Arpaia, Marker, and Costigan filed a Motion
to Dismiss the March 2005 Complaint. On April 25, 2005, Martinez,
Brinkley, and Day filed a Motion to Dismiss the March 2005
On June 28, 2005, the Court issued an Order granting Arpaia,
Marker and Costigan's Motion to Dismiss and granting Martinez,
Brinkley, and Day's Motion to Dismiss. The portion of Plaintiff's
first cause of action that referred to alleged violations of the
Fourteenth Amendment were dismissed without prejudice.
Plaintiff's third causes of action against Brinkley, Day, and
Martinez was dismissed without prejudice. Plaintiff's fourth
cause of action against all of the defendants was also dismissed
without prejudice. Additionally, Plaintiff's fifth and sixth
causes of action against Arpaia and Marker were dismissed without
prejudice. Plaintiff was granted leave to file an amended
On July 27, 2005, Plaintiff filed a First Amended Complaint.
The First Amended Complaint alleges the following causes of
action: (1) violation of the Fourth Amendment brought pursuant to
42 U.S.C. § 1983 (against Arpaia and Marker); (2) "failure to
intercede" brought pursuant to 42 U.S.C. § 1983 (against
Costigan); and (3) "excess force violation of the Fourth
Amendment" brought pursuant to 42 U.S.C. § 1983 (against
Brinkley, Day, and Martinez).
On August 4, 2005, Martinez, Brinkley, and Day filed their
answer to the First Amended Complaint. Also on August 4, 2005,
Arpaia, Marker, and Costigan filed the instant Motion to Dismiss.
On September 23, 2005, Plaintiff dismissed with prejudice the
July 2004 Complaint against Contra Costa County. On September 28,
2005, Plaintiff dismissed Brinkley, Day, and Martinez from the
action pursuant to settlement.
A. Federal Rule of Civil Procedure 12(b)(6).
Under Federal Rule of Civil Procedure 12(b)(6), a motion to
dismiss should be granted only if it appears beyond a reasonable
doubt that the plaintiff "can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). For purposes of such a motion, the
complaint is construed in a light most favorable to the plaintiff
and all properly pleaded factual allegations are taken as true.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Everest &
Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228
(9th Cir. 1994). All reasonable inferences are to be drawn in
favor of the plaintiff. Jacobson v. Hughes Aircraft,
105 F.3d 1288, 1296 (9th Cir. 1997).
The court does not accept as true unreasonable inferences or
conclusory allegations cast in the form of factual allegations.
Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.
1981); See Miranda v. Clark County, Nev., 279 F.3d 1102, 1106
(9th Cir. 2002) ("[C]onclusory allegations of law and unwarranted
inferences will not defeat a motion to dismiss for failure to
state a claim."); Sprewell v. Golden State Warriors,
266 F.3d 1187 (9th Cir. 2001); McGlinchy v. Shell Chem Co.,
845 F.2d 802, 810 (9th Cir. 1988) ("[C]onclusory allegations without more
are insufficient to defeat a motion to dismiss for failure to
state a claim.").
When a complaint is dismissed for failure to state a claim,
"leave to amend should be granted unless the court determines
that the allegation of other facts consistent with the challenged
pleading could not possibly cure the deficiency." Schreiber
Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401
(9th Cir. 1986). The Court should consider factors such as "the
presence or absence of undue delay, bad faith, dilatory motive,
repeated failure to cure deficiencies by previous amendments,
undue prejudice to the opposing party and futility of the
proposed amendment." Moore v. Kayport Package Express,
885 F.2d 531, 538 (9th Cir. 1989). Of these factors, prejudice to the
opposing party is the most important. See Jackson v. Bank of
Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (citing Zenith
Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31
(1971)). Leave to amend is properly denied "where the amendment
would be futile." DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th
A. Plaintiff's First Cause of Action for Violation of
42 U.S.C. § 1983.
In their Motion to Dismiss, Arpaia, Marker, and Costigan
(collectively, "Defendants") first move to dismiss Plaintiff's
first cause of action on the grounds that Plaintiff has alleged
only a Fourth, and not a Fourteenth, Amendment violation. This
issue was previously addressed in the Court's June 28, 2005
Order. Specifically, the Court reviewed the factual allegations
in Plaintiff's complaint and concluded that Plaintiff's
42 U.S.C. § 1983 claim was most properly characterized as a claim asserting
wrongful conduct during an arrest or seizure under the Fourth
Amendment. Accordingly, since Plaintiff conceded that she was not
asserting violations of either the due process clause or the
equal protection clause of the Fourteenth Amendment, the portion
of Plaintiff's first cause of action referring to the Fourteenth
Amendment was dismissed. Contrary to Defendants' assertions, the
allegations supporting the first cause of action in the First
Amended Complaint do not actually refer to the Fourteenth
Amendment. Further, Plaintiff concedes, in her opposition, that
she is not pursuing such a claim against any of the remaining
Defendants. However, Defendants are correct that certain other
paragraphs*fn2 in the First Amended Complaint erroneously
refer to alleged Fourteenth Amendment violations. Accordingly, to
address the ambiguity created by Plaintiff's First Amended
Complaint, Defendants' Motion to Dismiss the first cause of
action is GRANTED IN PART and all references to the Fourteenth
Amendment in the First Amended Complaint are STRICKEN.
B. Plaintiff's Second Cause of Action for "Failure to
Defendants next move to dismiss Plaintiff's second cause of
action, which is brought against Costigan pursuant to
42 U.S.C. § 1983 for an alleged failure to intercede on Plaintiff's behalf
during the allegedly unlawful arrest and purported use of
excessive force. Defendants' Motion is premised on the fact that
Plaintiff admits, in her First Amended Complaint, that Costigan
was not initially present at the scene when Plaintiff was placed
under arrest. In response, Plaintiff argues that the facts in the
First Amended Complaint, when viewed in the light most favorable
to her, are sufficient to state a claim against Costigan because
Costigan was not only "constructively present at the scene via the CHP radio dispatch,"
but also "actually met with Defendants Arpaia ad [sic] Marker
at or near the Alhambra off ramp from highway 24 while they
[were] en route" with Plaintiff.
Defendants are correct that there "is no respondeat superior
liability under § 1983." Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989). Accordingly, Costigan can only be held liable
for Arpaia and Marker's alleged constitutional violations under
Plaintiff's second cause of action if he "participated in or
directed the violations, or knew of the violations and failed to
act to prevent them." Id. Further, in a failure to intercede
claim, such liability can attach only if Costigan actually had an
opportunity to intercede. Cunningham v. Gates, 229 F.3d 1271,
1289-90 (9th Cir. 2000). Plaintiff is also correct, however,
that, when considering a Rule 12(b)(6) motion, this Court is
required to construe the complaint in the light most favorable to
Plaintiff and to take all properly pleaded factual allegations as
true. See Jenkins, 395 U.S. at 421 (1969). The Court is also
required to resolve all reasonable inferences in favor of
Plaintiff. Jacobson, 105 F.3d at 1296. Defendants' argument
therefore suffers from several fatal defects. First, Defendants'
argument requires the Court to construe the facts in the light
most favorable to Defendants and to conclude, as a matter of
law, that Costigan could not have had an opportunity to intervene
merely because he was initially participating in the arrest
through radio dispatch. This, however, the Court cannot do at the
present stage in the litigation and Defendants have not provided
the Court with any authorities that suggest otherwise.*fn3
Second, Defendants focus solely on Plaintiff's claim for
excessive force, and therefore overlook the fact that Plaintiff
has also stated a more basic "unreasonable search and seizure"
Fourth Amendment claim relating to her arrest. Since Plaintiff
has alleged that Costigan was, in fact, physically present while
Plaintiff was being held in Arpaia and Marker's police vehicle,
the mere fact that Costigan was initially corresponding with
Arpaia and Marker through the radio is irrelevant.*fn4 Accordingly, Defendants' Motion to
Dismiss Plaintiff's second cause of action is DENIED.
IT IS HEREBY ORDERED THAT Defendants Arpaia, Marker, and
Costigan's Motion to Dismiss [Docket No. 18] is GRANTED IN PART
AND DENIED IN PART. Defendants' Motion relating to Plaintiff's
first cause of action is GRANTED IN PART and Plaintiff's
references to the Fourteenth Amendment in paragraphs 6 and 26 of
the First Amended Complaint are STRICKEN. Defendants' request to
dismiss Plaintiff's second cause of action is DENIED.
IT IS FURTHER ORDERED THAT the Case Management Conference,
currently scheduled for October 18, 2005 at 1:00 p.m. is
VACATED. The parties shall appear for a telephonic Case
Management Conference on Wednesday, November 16, 2005 at 3:15
p.m. The parties shall meet and confer prior to the conference
and shall prepare a joint Case Management Conference Statement
which shall be filed no later than ten (10) days prior to the
Case Management Conference. Plaintiff shall be responsible for
filing the statement as well as for arranging the conference
call. All parties shall be on the line and shall call (510)
6373-559 at the above indicated date and time.
IT IS SO ORDERED.
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