The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS (Doc. 8)
Plaintiff Joe Rascon has filed a Complaint for Damages against Catalina Rodriguez, Jonathan Long and David Wilkin, peace officers with the Fresno Police Department; Larry Hustedde, a sergeant with the Fresno Police Department; and Mark Salazar, a lieutenant with the Fresno Police Department.
Plaintiff's Complaint alleges the following facts:
9. On January 25, 2008, Plaintiff stopped at the Moonlite Restaurant located at 2731 West Clinton Avenue, Fresno, California, where he was served and consumed two non-alcoholic beverages.
10. At approximately 5:20 p.m. as Plaintiff exited the restaurant, he observed a Fresno police officer sitting in a patrol car with its overhead lights activated, parked in the middle of the restaurant parking lot. The patrol car was located in a position partially behind and at a distance from Plaintiff's pickup, which was parked in a space immediately adjacent the building in a row with other parked vehicles.
11. Plaintiff visually scanned the parking lot to determine if there was a vehicle that was the subject of the patrol car's presence at that location but there was no other vehicle not in a parking space and Plaintiff did not identify any person who appeared to be involved with the police officer. The officer appeared to be completing paperwork inside the patrol car.
12. Plaintiff entered his pickup, started the engine and turned on its lights. Plaintiff then engaged in a cell phone conversation for approximately one minute. After completing that conversation, Plaintiff looked back and determined the patrol car was still in the same location with the officer in the driver's seat. Plaintiff exited his vehicle, went to the rear of the cab, waved at the officer but did not make any eye contact nor speak to the officer.
13. Plaintiff got back into the pickup and started maneuvering the vehicle out of the parking space. When the rear end of Plaintiff's pickup passed in front of the patrol car, the officer, Defendant Rodriguez, appeared to the left and rear of the pickup's driver's side door. Defendant Rodriguez then yelled at Plaintiff that he was interfering with her traffic stop, to get out of his vehicle and accused Plaintiff of having been drinking.
14. Plaintiff exited his vehicle as ordered and told Defendant Rodriguez that he had not been interfering and was merely backing out so he could leave; he further advised Defendant Rodriguez that he had not been aware she was conducting a stop.
15. At that time, a second patrol car arrived with two officers in it. One of the officers, Defendant Wilkin, asked Defendant Rodriguez what was happening and she said that Plaintiff had been interfering. Both officers in the second patrol car then exited their vehicle. Defendant Wilkin requested Plaintiff's driver's license, which Plaintiff provided. Defendant Wilkin took the license and walked back to the patrol car. Defendant Rodriguez then walked over to a car parked to the left of Plaintiff's pickup and contacted its driver.
16. After the two officers walked away, Defendant Long started talking to Plaintiff in a disrespectful manner and pointing his right index finger repeatedly in Plaintiff's face. Plaintiff stated that Defendant Long needed to stop addressing Plaintiff in such a rude and disrespectful manner; that Defendants did not have legal cause to detain Plaintiff.
17. Defendant Wilkin returned and said to Plaintiff 'You need to shut your mouth; you're pissing me off.' Defendant Wilkin then leaned over Plaintiff's body, audibly sniffed and said he smelled alcohol. Defendant Wilkin stated Plaintiff was under arrest for interfering and operating a motor vehicle while under the influence of alcohol. Plaintiff was handcuffed and walked by Defendant Wilkin to the patrol car.
18. At the patrol car, Defendant Wilkin searched Plaintiff and retrieved his wallet and thereby observed Plaintiff's Fresno County Sheriff's badge and identification. Defendant Wilkin asked Plaintiff why he had not said he was a cop. Defendant Wilkin put Plaintiff in the rear of his caged patrol car.
19. Approximately ten minutes later, Defendant Hustedde arrived and spoke with the Defendant Officers. With Plaintiff in the rear of the patrol car, Defendant Hustedde questioned Plaintiff three separate times regarding the facts of the allegations of interfering with Defendant Rodriguez's traffic stop. Defendant Hustedde questioned Plaintiff about the consumption of any alcoholic beverage. Defendant Hustedde stated there had been no violation of law. Defendant Hustedde stated he had to summon his lieutenant to determine whether to book Plaintiff into jail.
20. Plaintiff requested a PAZ test to determine his blood alcohol but Defendant Hustedde stated the lieutenant had refused to permit this. Plaintiff is informed and believes the referenced lieutenant was Defendant Salazar.
21. Approximately thirty minutes after Plaintiff had been arrested, Defendant Salazar arrived and spoke with the Defendant Officers, Defendant Hustedde and others. After Defendant Salazar had been on the scene approximately twenty minutes, Plaintiff was released with no charges. Defendant Salazar also refused to have a PAZ test administered.
The First Claim for Relief is for violation of 42 U.S.C. § 1983 and alleges that, in detaining and arresting Plaintiff, Defendants violated Plaintiff's right to equal protection and to be free from unreasonable search and seizure. The First Claim for Relief alleges:
25. That Defendants, and each of them, in all of their mutual and respective acts and omissions in connection with Plaintiff's detention and arrest, knew that Plaintiff had violated no law and that their aforesaid actions were without probable cause and in violation of Plaintiff's aforesaid Constitutional rights and that the violation of these rights was knowing, willful and malicious and with reckless disregard for Plaintiff's rights.
26. Plaintiff believes that Defendants, and each of them, in all of their mutual and respective acts and omissions in connection with Plaintiff's detention and arrest, were motivated by the fact that Plaintiff is Hispanic. The Second Claim for Relief is for conspiracy in violation of 42 U.S.C. § 1985 and alleges:
29. In perpetrating, allowing, and ratifying the aforesaid acts and omissions, Defendants Rodriguez, Long and Wilkin, and each of them, conspired to and did interfere with and deny Plaintiff the exercise of his civil rights to be free from unlawful search and seizure.
30. In perpetrating, allowing and ratifying the aforesaid acts and omissions of Defendants Rodriguez, Long and Wilkin, and each of them, Defendants Hustedde and Salazar refused to prevent the violation of Plaintiff's rights and the injuries and losses arising therefrom.
The Third Claim for Relief is for negligence pursuant to 42 U.S.C. § 1986 and alleges:
35. Defendants Rodriguez [sic] and Hustedde, individually had knowledge of the aforesaid acts and omissions of Defendants Wilkin, Long and Salazar [sic], and each of them.
36. Defendants Rodriguez [sic] and Hustedde, individually, had the power to prevent or aid in preventing the commission of these wrongs, but each of said Defendants neglected or refused to do so.
37. In perpetrating, allowing and ratifying the aforesaid acts and omissions, Defendants Rodriguez [sic] and Hustedde, and each of them, neglected to prevent the violation of Plaintiff's rights and the injuries and losses arising therefrom.
Defendants move to dismiss the Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir.2001). "A district court should grant a motion to dismiss if plaintiffs have not pled 'enough facts to state a claim to relief that is plausible on its face.'" Williams ex rel. Tabiu v. Gerber Products Co., 523 F.3d 934, 938 (9th Cir.2008), quoting Bell Atlantic Corp. v. Twombley, ___ U.S. ___, 127 S.Ct. 1955, 1974 (2007). "'Factual allegations must be enough to raise a right to relief above the speculative level.'" Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic, id. at 1964-1965. Dismissal of a claim under Rule 12(b)(6) is appropriate only where "it appears beyond 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). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party.
Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir.2003). Immunities and other affirmative defenses may be upheld on a motion to dismiss only when they are established on the face of the complaint. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir.1988).
B. FIRST CLAIM FOR RELIEF
Defendants move to dismiss the First Claim for Relief on the grounds that Plaintiff has failed to state a claim for denial of equal protection under Section 1983; Plaintiff has failed to adequately allege personal participation by all Defendants; and Defendants Rodriguez, Hustedde and Salazar are entitled to qualified immunity.
1. Denial of Equal Protection
"'To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based on his membership in a protected class.'" Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1179 (E.D.Cal.2005), quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.2001); see also Moua v. City of Chico, 324 F.Supp.2d 1132, 1137 (E.D.Cal.2004): In order to make out an equal protection violation, plaintiffs must prove four elements: (1) the municipal defendants treated them differently from others similarly situated; (2) this unequal treatment was based on an impermissible classification; (3) the municipal defendants acted with discriminatory intent in applying this classification; and (4) plaintiffs suffered injury as a result of the discriminatory classification.
Defendants contend that the Complaint's conclusory allegation that Plaintiff's detention and arrest were motivated by the fact that Plaintiff is Hispanic does not state a claim because there are no allegations which support his being treated differently from other similarly situated persons or that Defendants acted with ...