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November 15, 2005.

WILLIAM LAMBERT, an individual; BEVERLY LAMBERT, an individual, Plaintiffs,
CITY OF SANTA ROSA, a chartered city; SANTA ROSA POLICE DEPARTMENT, a police agency; EDWIN F. FLINT, Santa Rosa Police Chief; MATTHEW A. SANCHEZ, individually and as a police officer of the Santa Rosa Police Department; ALISSA JOHNSON, individually and as a police officer of the Santa Rosa Police Department; and DOES 1 to 25, Defendants.

The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge

Defendants move to dismiss several of Plaintiffs' causes of action. Plaintiffs William and Beverly Lambert oppose this motion but agree to dismiss some claims. The matter was heard on November 4, 2005. Having considered all of the papers filed by the parties and oral argument on the motion, Defendants' motion is GRANTED in part and DENIED in part.


  According to Plaintiffs' complaint, on or about March 22, 2004, at approximately 8:04 p.m., Santa Rose police officers, Defendants Matthew Sanchez and Alissa Johnson, responded to a 911 call made by Mrs. Lambert. Plaintiffs allowed Sanchez and Johnson peaceably to enter their home in Santa Rosa. Sanchez and Johnson questioned Plaintiffs and their adult son Jon. Plaintiffs have been married for forty-one years and, before this incident, there had been no incidents of domestic violence.

  Following a brief discussion, Sanchez and Johnson separated Plaintiffs. Initially, Johnson accompanied Mr. Lambert into the family room and Sanchez remained with Mrs. Lambert in the adjacent area of the house. Jon was left alone at the time and was able to see and hear Mr. Lambert's discussion. After approximately ten or twenty minutes, Sanchez and Johnson switched positions.

  Sanchez questioned Mr. Lambert for approximately ten minutes, asking him for his date of birth and whether he had been drinking alcohol that evening. Mr. Lambert informed Sanchez of his age and birth date. He explained that his wife had a couple of drinks prior to dinner and that he and Jon had not, but that he had consumed one glass of wine with dinner. Sanchez asked to see Mr. Lambert's driver's license. Mr. Lambert replied that it was in his wallet in the dining room. When Mr. Lambert attempted to enter the dining room to retrieve his wallet, Sanchez stood in his path and raised his hand towards Mr. Lambert stating that he did not need to see the driver's license. Mr. Lambert explained that it was not a problem to get the license for him. Sanchez then stepped toward Mr. Lambert and ordered him to turn around and put his hands behind his back. Mr. Lambert replied that if Sanchez was going to handcuff him, he would like to use the bathroom first. Plaintiffs' bathroom was approximately five feet from where Sanchez and Mr. Lambert were standing.

  Without warning, Sanchez grabbed Mr. Lambert by the left shoulder and spun him around while twisting his left arm behind his back. Mr. Lambert then renewed his request to use the bathroom and suggested that Sanchez could leave the door open but that he needed to relieve himself. Sanchez did not respond verbally. He kicked Mr. Lambert's right leg out from under him, causing Mr. Lambert to fall to the ground and crushing and breaking his right leg. Sanchez then twisted Mr. Lambert's right leg behind him causing him further pain. Mr. Lambert screamed and pleaded for Sanchez to release his leg. Sanchez released his leg but stood over Mr. Lambert holding what felt to Mr. Lambert like a gun against his rib cage. Mr. Lambert believed he was going to be shot and killed. Sanchez was holding a taser pistol and used the taser on Mr. Lambert's right leg. Mr. Lambert screamed in pain again. Sanchez then handcuffed Mr. Lambert's hands behind his back and ordered him to stand. Mr. Lambert was not able to stand on his own and fell to the floor a second time.

  During these events, Mrs. Lambert, Jon and Johnson were in the dining room. Johnson came into the family room after Sanchez pulled Mr. Lambert off the floor. Johnson entered the family room and assisted Sanchez in lifting Mr. Lambert's upper body off the floor and dragging his lower body, including his broken leg. Sanchez and Johnson then propped Mr. Lambert against a couch with his broken leg under him. They ignored Mr. Lambert's request to help him remove his broken leg out from under him.

  Mr. Lambert again asked if he could use the bathroom; he advised Sanchez and Johnson that he could not get there on his own strength and that he needed help relieving himself. Sanchez and Johnson discussed Mr. Lambert's request during which time Johnson advised Sanchez to remove the handcuffs and allow him to use the bathroom. Sanchez and Johnson helped Mr. Lambert to the bathroom, which was approximately eight feet away from the couch. Both Sanchez and Johnson witnessed Mr. Lambert relieve himself.

  Mr. Lambert does not recall what transpired between the time he was allowed to use the bathroom and the time the paramedics arrived. Nor does he know who called the paramedics. Mr. Lambert was taken by ambulance to Kaiser Permanente Hospital. He was treated in the emergency room for a fractured tibia and his leg was placed in a full brace. Johnson stayed in the room initially but was replaced by Sanchez. Sanchez insisted that emergency room staff release Mr. Lambert to him so that he could take him to jail. At no time during these incidents did Defendants read Mr. Lambert his rights, tell him why he was arrested or inform him why Sanchez used force against him.

  While in the emergency room, Mr. Lambert asked Sanchez for water. Sanchez responded that he was not a nurse. Mr. Lambert called a nurse and requested water. Mr. Lambert also asked Sanchez to call Mrs. Lambert. But Sanchez refused and stated that Mr. Lambert was under arrest and did not have a right to speak on the phone.

  Mr. Lambert was released from the emergency room. His attending physician, in Sanchez' presence, requested that Mr. Lambert not place any weight on his right leg. Sanchez ordered Mr. Lambert off the examination table and did not allow him to wear a jacket or robe of any kind. Sanchez forced Mr. Lambert to leave the hospital on crutches with his gown open in the back exposing Mr. Lambert's underwear. Mr. Lambert walked approximately seventy-five feet down the sidewalk to the patrol car. Sanchez did not offer to assist Mr. Lambert or to get a wheelchair.

  Mr. Lambert arrived at the Sonoma County Jail at approximately 11:30 p.m. Sanchez went into the jail and returned twenty minutes later with a wheelchair. Sanchez helped Mr. Lambert into the wheelchair. While in the jail waiting room, another officer told Mr. Lambert that he could watch television and use the telephone to make a call. Sanchez was no longer with Mr. Lambert.

  After these events, Sanchez and Johnson falsified their arrest reports. Mr. Lambert alleges that Defendants City of Santa Rosa, Santa Rosa Police Department and various officials know of Sanchez's use of excessive force, and of Sanchez and Johnson's falsification of their reports. On or about June 11, 2004, Mr. Lambert submitted a statement to Defendant Santa Rosa concerning the events of March 22, 2004. On or about June 21, 2004, Lieutenant Zboralske and Sergeant Swartz from Defendant Police Department met Plaintiffs at their home in the presence of Plaintiffs' attorney. The officers discussed Defendant Police Department's cooperation and public support. As of March 31, 2005, Plaintiffs did not know if any investigation had been completed.

  As a result of the injuries Mr. Lambert sustained on March 22, 2004, he has undergone surgery on his right leg and may need further surgeries in the future. Plaintiffs have had to move from their two-story home in Santa Rosa to a smaller single-story home in Cloverdale, California. They moved because of Mr. Lambert's difficulty walking, his period of recuperation following surgery, his loss of income and because they fear additional harm from Defendant Police Department.

  During the events of March 22, 2004, Mrs. Lambert was at all times in the adjacent room and heard and/or observed incidents which occurred in the hallway next to the bathroom. Mrs. Lambert could hear Mr. Lambert's screams. Following Mr. Lambert's fall to the ground, Mrs. Lambert and her son entered the hallway and witnessed Mr. Lambert in pain. She also observed as Sanchez and Johnson hauled Mr. Lambert over to the couch. This caused Mrs. Lambert severe emotional trauma for which she has received treatment and incurred monetary damages, including three months of lost wages.

  Plaintiffs' complaint alleged twelve causes of action; however, in their opposition, Plaintiffs voluntarily agreed to dismiss the third, fourth, fifth, sixth, tenth and eleventh causes of action against all Defendants and to dismiss all claims against Defendant Police Chief Edwin Flint. In addition, Plaintiffs do not intend to pursue the seventh cause of action and, therefore, it is dismissed. Furthermore, Plaintiffs have clarified that Mrs. Lambert's sole claim is based on loss of consortium (twelfth cause of action) as a result of the assault on Mr. Lambert. At hearing the parties also agreed that Santa Rosa Police Department was included erroneously as a defendant in that it is not a separate legal entity. Thus, all claims against the Santa Rosa Police Department are dismissed.

  The remaining causes of action brought by Mr. Lambert, as originally numbered in the complaint, are: (first) violation of 42 U.S.C. § 1983 against Defendants Santa Rosa, and Sanchez and Johnson, individually and in their official capacities; (second) assault and battery against Defendants Santa Rosa, and Sanchez and Johnson, individually and in their official capacities; (eighth) intentional infliction of emotional distress against Defendants Santa Rosa, and Sanchez and Johnson, individually and in their official capacities; (ninth) failure to intervene against Defendant Johnson. Mrs. Lambert brings the twelfth cause of action for loss of consortium against Defendants Santa Rosa, and Sanchez and Johnson, individually and in their official capacities.


  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)). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

  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).


  I. First Cause of Action for Excessive ...

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