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Abeytia v. Fresno Police Dep't

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 12, 2009

ERNEST HECTOR ABEYTIA, PLAINTIFF,
v.
FRESNO POLICE DEPARTMENT AND FRESNO POLICE OFFICER GENE JOHNSON AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND MOTION TO DISMISS AND MOTION DENYING IN PART DEFENDANTS' ORDER GRANTING IN PART AND FOR A MORE DEFINITE STATEMENT (DOC. 5) IN BOTH PERSONAL AND FRESNO, OFFICIAL CAPACITIES, CITY OF

I. INTRODUCTION

Plaintiff Ernest Hector Abeytia ("Abeytia"), proceeding in pro per, filed a complaint against the City of Fresno, the Fresno Police Department, Officer Gene Johnson, and Does 1-100 in the Superior Court of the State of California, County of Fresno, on May 28, 2008. Plaintiff asserts a claim under 42 U.S.C. § 1983 for excessive force, alleging violation of his Fourth and Fourteenth Amendment rights, in addition to various state law claims. After being served with notice of the action on or about September 9, 2008, Defendants filed a notice of removal on October 9 pursuant to 28 U.S.C. § 1441(b) based on federal question jurisdiction. Before the court for decision is Defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, a motion for a more definite statement pursuant to Fed. R. Civ. P. 12(e), based on the following grounds: 1) Plaintiff has failed to state a claim for a Fourteenth Amendment substantive due process violation, 2) Plaintiff has failed to state a claim for an equal protection violation, 3) Plaintiff has failed to allege valid claims pursuant to 42 U.S.C. §§ 1986 and 1988, 4) Plaintiff has failed to sufficiently plead a Monell claim, 5) Plaintiff's claim against the Fresno Police Department is improper, 6) Plaintiff has failed to properly plead his state law claims for negligence as to the City of Fresno and for intentional infliction of emotional distress, and 7) it is unclear whether Plaintiff's third cause of action asserts a claim under Cal. Civ. Code § 51 or § 52(b) or some other section.*fn1

Plaintiff has not filed an opposition to the motion to dismiss or a statement of non-opposition. On December 12, 2008, Plaintiff was directed by court order to file a written opposition or statement of non-opposition by January 12, 2009. (Doc. 7.) He ignored this order.

II. BACKGROUND

On May 9, 2007, Defendant Johnson was on duty as a Fresno Police Department Officer. (Doc. 2-2, Complaint at ¶12.) At approximately 6:30 a.m. on May 9, 2007, Fresno Police Department officers were executing a search warrant on an individual who lived at a residence located next door to 3061 E. El Monte Way in Fresno, California. Plaintiff exited the back of the residence located at 3061 E. El Monte Way, walked through the backyard, and entered the alley where he was confronted by three Fresno Police Department officers who yelled, "get on your knees, Fresno P.D." Plaintiff alleges he immediately got on his knees and put his hands in the air and said, "I know who you are." (Doc. 2-2, Complaint at ¶13.)

Plaintiff alleges that Defendant Johnson then let loose of his canine and ordered the dog to attack Plaintiff thereby willfully, maliciously, unlawfully, and intentionally using excessive force against Plaintiff. Plaintiff further alleges that, despite his attempt to hold the dog off and beg the officers to pull the dog off him, he was attacked and bitten at least four separate times on his right leg, resulting in numerous painful lacerations and puncture wounds to his right leg. Plaintiff alleges Defendant Johnson eventually pulled the dog off Plaintiff but Johnson then kicked Plaintiff twice in the upper part of his body. (Doc. 2-2, Complaint at ¶13.)

Plaintiff states this action is "brought pursuant to 42 U.S.C. §1981, §1983, §1985, §1986, §1988, 28 U.S.C. §1343, the Fourth and Fourteenth Amendments of the United States Constitution and other applicable laws as may be determined."

(Doc. 2-2, Complaint at 2.) In the body of his complaint, he asserts his first cause of action for violation of 42 U.S.C. § 1983, alleging violation of his Fourth and Fourteenth Amendment rights. His second cause of action is for assault and battery. He asserts a third cause of action for "Interference with Civil Rights (Tom Banes Civil Rights Act)," and references Cal. Civ. Code §§ 51 and 52(b) in describing his third cause of action. He alleges a fourth cause of action for intentional infliction of emotional distress and a fifth cause of action for negligence and negligent infliction of emotional distress. Plaintiff prays for general and special damages, exemplary or punitive damages, a statutory civil penalty of $25,000 as provided for in Cal. Civ. Code § 52(b), and attorney's fees.

III. LEGAL STANDARD

A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, it is required to contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007); see also Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (issue is not whether plaintiff will ultimately prevail, but whether claimant is entitled to offer evidence to support the claim). 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 deciding a motion to dismiss, the court accepts as true all material factual allegations in the complaint and construes them in the light most favorable to the plaintiff. See Newman v. Sathyavaglswaran, 287 F.3d 786, 788 (9th Cir. 2002).

The court need not accept as true allegations that contradict facts which may be judicially noticed. See Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). For example, matters of public record may be considered, including pleadings, orders, and other papers filed with the court or records of administrative bodies, see Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), while conclusions of law, conclusory allegations, unreasonable inferences, or unwarranted deductions of fact need not be accepted. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) ("[A] document is not 'outside' the complaint if the complaint specifically refers to the document and if its authenticity is not questioned."). Allegations in the complaint may be disregarded if contradicted by facts established by exhibits attached to the complaint. Sprewell, 266 F.3d at 988. Thus when ruling on a motion to dismiss, the court may consider 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 may take judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1988).

Pro se complaints are held to less stringent standards than formal pleadings by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). A court must construe a pro se plaintiff's "inartful pleading" liberally in determining whether a claim has been stated, including pro se motions as well as complaints. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). This is especially true when a plaintiff appears pro se in a civil rights case. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). While a pro se litigant must follow the same rules of procedure that govern other litigants, King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), "[d]ismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988).

B. Motion for a More Definite Statement Pursuant to Fed. R. Civ. P. 12(e)

Federal Rule of Civil Procedure 12(e) provides:

pleading to which a responsive pleading is allowed but A party may move for a more definite statement of a reasonably prepare a response. The motion must be made which is so vague or ambiguous that the party cannot before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 10 days after notice of the order. strike the pleading or issue any other appropriate order or within the time the court sets, the court may

A Rule 12(e) motion for a more definite statement must be considered in light of the liberal pleading standards of Rule 8(a) in federal court. See Bureerong v. Uvawas, 922 F.Supp. 1450, 1461 (C.D. Cal. 1996) (citing Sagan v. Apple Computer, Inc., 874 F.Supp. 1072, 1077 (C.D. Cal. 1994)) ("Motions for a more definite statement are viewed with disfavor and are rarely granted because of the minimal pleading requirements of the Federal Rules."). Under the liberal pleading standards, "pleadings in the federal courts are only required to fairly notify the opposing party of the nature of the claim." A.G. Edwards & Sons, Inc. v. Smith, 736 F.Supp. 1030, 1032 (D. Ariz. 1989).

A Rule 12(e) motion is proper only if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted, meaning the complaint is so vague that the defendant cannot begin to frame a response. See Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F.Supp. 940, 949 (E.D. Cal. 1981); Boxall v. Sequoia Union High Sch. Dist., 464 F.Supp. 1104, 1114 (N.D. Cal. 1979). The motion must be denied if the complaint is specific enough to notify defendant of the substance of the claim being asserted. San Bernardino Pub. Employees Ass'n v. Stout, 946 F.Supp. 790, 804 (C.D. Cal. 1996) ("A motion for a more definite statement is used to attack unintelligibility, not mere lack of detail, and a complaint is sufficient if it is specific enough to apprise the defendant of the substance of the claim asserted against him or her."). The motion should be denied if the detail sought by a motion for more definite statement is obtainable through discovery. Davison v. Santa Barbara High Sch. Dist., 48 F.Supp.2d 1225, 1228 (C.D. Cal. 1998).

IV. DISCUSSION

A. Section 1983

Plaintiff brings this lawsuit under 42 U.S.C. § 1983, which provides a cause of action "against any person acting under color of law who deprives another 'of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003)(quoting 42 U.S.C. § 1983). "The rights guaranteed by section 1983 are 'liberally and beneficently construed.'" Id. (quoting Dennis v. Higgins, 498 U.S. 439, 443 (1991)).

Pursuant to 42 U.S.C. § 1983, Plaintiff may bring a civil action for deprivation of rights under the following circumstances:

ordinance, regulation, custom, or usage, of any Every person who, under color of any statute, State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the equity, or other proper proceeding for redress, party injured in an action at law, suit in except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive decree was violated or declaratory relief was relief shall not be granted unless a declaratory unavailable.

To establish liability under § 1983, a plaintiff must show: 1) that he has been deprived of a right secured by the United States Constitution or a federal law, and 2) that the deprivation was effected "under color of state law." Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).

1. Fourteenth Amendment Substantive Due Process Claim

Plaintiff asserts an excessive force claim, alleging he "suffered serious bodily and emotional harm, which is in violation of his rights to be free from unreasonable searches and seizures as provided by the Fourth and Fourteenth Amendments to the United States Constitution...." (Doc. 2-2, Complaint at ¶14.) He further states he was deprived of his constitutional rights "including, but not limited to his right under the Fourth and Fourteenth Amendments to be secure in his person, to be free from the use of unjustified force, to be free from summary punishment without due process, and to equal protection of the laws." (Id. at ¶15.) Defendants attack the Fourteenth Amendment substantive due process claim, arguing an excessive force claim is properly brought pursuant to the Fourth Amendment and not under a substantive due process approach.

The Ninth Circuit has stated that substantive due process protects individuals from arbitrary deprivation of their liberty by government. The [Supreme] Court has repeatedly spoken of the cognizable level of executive abuse of power as that which shocks the conscience. can be shown by conduct intended to injure in some way be arbitrary in a constitutional sense. Such conduct Only the most egregious official conduct can be said to unjustifiable by any government interest...Thus, in order to establish a constitutional violation based on behavior by the government. deprivation of her liberty and conscience shocking substantive due process, [Plaintiff] must show both a Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) (internal quotations and citations omitted).

The Supreme Court held in Graham v. Connor that "all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach." 490 U.S. 386, 395 (1989) (emphasis in original). Plaintiff alleges that he was subjected to excessive force by a police officer directing his canine to attack Plaintiff. Graham's holding requires that Plaintiff's claim for excessive force under the substantive due process standard of the Fourteenth Amendment be dismissed as it is not the shocking type of conduct that is intolerable. Accordingly, Defendants' motion to dismiss Plaintiff's Fourteenth Amendment substantive due process claim is GRANTED WITH PREJUDICE.

2. Fourteenth Amendment Equal Protection Claim

The only reference to an equal protection claim in Plaintiff's complaint is the conclusory allegation in Paragraph 15 under his first cause of action: "Plaintiff ABEYTIA was deprived of rights and immunities secured to him under the Constitution of the United States of America including, but not limited to his right under the Fourth and Fourteenth Amendments to be secure in his person...and to equal protection of the laws." (Doc. 2-2, Complaint at ¶15.) Defendants argue that Plaintiff has failed to plead an equal protection claim in that he has failed to allege membership in an identifiable class and failed to allege any facts that would indicate he was treated differently from other similarly situated persons.

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 upon membership in a protected class." Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). In order to make out an equal protection violation, a plaintiff must prove four elements:

(1) the municipal defendants treated [him] differently from others similarly situated; (2) this unequal treatment was based on an impermissible classification; intent in applying this classification; and (4) (3) the municipal defendants acted with discriminatory discriminatory classification. [plaintiff] suffered injury as a result of the Moua v. City of Chico, 324 F.Supp.2d 1132, 1137 (E.D. Cal. 2004).

Here Plaintiff has not alleged any membership in a protected class, nor has he alleged that Defendants treated him differently from others similarly situated. Plaintiff asserts no facts that would suggest he was subject to unequal treatment or discriminatory classification. Plaintiff wholly fails to allege any facts that would support any of the elements of an equal protection claim.

Defendants' motion to dismiss Plaintiff's Fourteenth Amendment equal protection claim is GRANTED.

B. Sections 1986 and 1988

Defendants contend that Plaintiff has failed to allege valid claims under 42 U.S.C. §§ 1986 and 1988 because: 1) a claim under 42 U.S.C. § 1986 is dependent on the existence of a claim under 42 U.S.C. § 1985 and no such claim is asserted here, and 2) 42 U.S.C. § 1988 is remedial and does not provide a separate cause of action. Plaintiff's complaint briefly references §§ 1985, 1986 and 1988 on page 2 and §§ 1986 and 1988 again on page 5 but provides no factual detail except a simple listing of the code section.

Without a violation of § 1985, there can be no violation of § 1986. Mollnow v. Carlton, 716 F.2d 627, 632 (9th Cir. 1983); Browder v. Tipton, 630 F.2d 1149, 1155 (6th Cir. 1980). To maintain a cause of action under § 1985(3), a plaintiff must allege and prove four elements:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of equal privileges and immunities under the laws; and (3) persons of the equal protection of the laws, or of person is either injured in his person or property or an act in furtherance of the conspiracy; (4) whereby a deprived of any right or privilege of a citizen of the United States.

United Broth. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29 (1983); see Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). The second of these four elements requires that in addition to identifying a legally protected right, a plaintiff must demonstrate a deprivation of that right motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).

Plaintiff has not alleged any facts to support an equal protection violation. He has not asserted any membership in any protected class or even identified his racial or ethnic background. Because Plaintiff has not alleged any facts to show any type of discriminatory animus on the part of Defendants, he cannot maintain a claim for violation of 42 U.S.C. § 1985. Because his 42 U.S.C. § 1985 claim fails, so does any purported claim under 42 U.S.C. § 1986.

42 U.S.C. § 1988 allows prevailing parties in civil rights actions to recover reasonable attorney's fees. It was designed to eliminate financial barriers to the vindication of constitutional rights and to stimulate voluntary compliance with the law. Seattle School Dist. No. 1 v. State of Wash., 633 F.2d 1338, 1348 (9th Cir. 1980). Section 1988 does not create an independent cause of action for civil rights violations. Moor v. Alameda County, 411 U.S. 693, 703-04 (1973). It simply defines procedures under which remedies may be sought in civil rights actions. Schroder v. Volcker, 864 F.2d 97, 99 (10th Cir. 1988). To the extent Plaintiff asserts his "action is brought" pursuant to section 1988, this claim is properly dismissed.

Accordingly, Defendants' motion to dismiss Plaintiff's claims pursuant to 42 U.S.C. §§ 1985, 1986 and 1988 is GRANTED.

C. Monell Claim

Defendants argue Plaintiff has failed to allege any facts sufficient to sustain a Monell claim. Specifically, Defendants state: "[t]here is nothing in the complaint indicating that the alleged wrongful actions were pursuant to a 'policy or custom.'"

(Doc. 5-2 at 5.)

Local governments*fn2 are "persons" subject to suit for "constitutional tort[s]" under 42 U.S.C. § 1983.*fn3 Haugen v. Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)). "[T]he legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies." Id. at 690. These bodies "can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers...[or for] deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decision making channels."

Id. at 690-91.

A local government's liability is limited. Although a local government can be held liable for its official policies or customs, it will not be held liable for an employee's actions outside of the scope of these policies or customs.

[T]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular,...a municipality cannot be held liable solely because it employs a tortfeasor, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.

Monell, 436 U.S. at 691. The statute's "language plainly imposes liability on a government that, under color of some official policy, 'causes' an employee to violate another's constitutional rights." Id. at 692.

To establish municipal liability, a plaintiff must prove the existence of an unconstitutional municipal policy. Haugen, 351 F.3d at 393.

[I]t is when execution of a government's policy or custom, whether made by its law-makers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983."

Monell, 436 U.S. at 694. There are various ways a plaintiff may prove the existence of an unconstitutional municipal policy under the Monell doctrine.

To prevail in a civil rights claim against a local government under Monell, a plaintiff must satisfy a three-part test:

(1) violated the plaintiff's constitutional rights;

The local government official(s) must have intentionally

(2) not be an isolated incident; and The violation must be a part of policy or custom and may

(3) There must be a link between the specific policy or custom to the plaintiff's injury.

Id. at 690-92.

There are additional ways a plaintiff may prove a policy or custom of a municipality. A plaintiff may show (1) "a longstanding practice or custom which constitutes the 'standard operating procedure' of the local government entity;" (2) "the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision;" or (3) "the official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate." Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). The Ninth Circuit has held that a municipal policy "may be inferred from widespread practices or evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded." Id.

Plaintiff asserts in his complaint that the "failure of Defendants CITY OF FRESNO and FPD to provide training and supervision regarding the lawful use of force amounts to the deliberate indifference to the safety and lives of the citizens of the City of Fresno. This deliberate indifference was the legal cause of the injuries sustained by ABEYTIA." (Doc. 2-2 at ¶16.) Plaintiff further contends that the "FPD and the supervisory officers or agents of Defendant FPD, are directly liable and responsible for the acts of the aforementioned Defendant JOHNSON, because they repeatedly, knowingly and with deliberate indifference failed to enforce the laws of the State of California and the regulations of Defendant FPD pertaining to the appropriate use of force." (Id. at ¶17.)

Under certain circumstances, a municipality can be liable for failure to properly train its employees. City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). To prevail on a failure to train theory, a plaintiff must prove that the inadequacy of training amounted to "deliberate indifference to the rights of persons with whom the police come into contact." Id.; see also Tanner v. Heise, 879 F.2d 572, 582-83 (9th Cir. 1989). Only where plaintiff can prove that a failure to train reflects a "deliberate" or "conscious" choice by a municipality can a city be liable for such a failure under § 1983. It will not suffice to prove that an injury or accident could have been avoided "if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury...." City of Canton, 489 U.S. at 391. "[A]dequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable." Id. "[F]or liability to attach in this circumstance[,] the identified deficiency in a city's training program must be closely related to the ultimate injury." Id.

A municipality's failure to supervise its employees can also give rise to § 1983 liability, but only in those situations where there is a history of wide-spread abuse. See Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983) (cited with approval in City of Canton, 489 U.S. at 399). Similarly, "municipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct within the meaning of Monell." Sarus v. Rotundo, 831 F.2d 397, 400-01 (2d Cir. 1987).

Defendants are wrong in their contention that Plaintiff has failed to allege facts sufficient to state a Monell claim. Plaintiff has alleged that the City and FPD with deliberate indifference failed to train and supervise officers regarding the use of force, which caused Plaintiff's injuries. (Complaint at ¶¶16-17.) It is well established in the Ninth Circuit that an allegation based on nothing more than a bare averment that the official's conduct conformed to official policy, custom or practice suffices to state a Monell claim under Section 1983. See Karim Panahi v. L.A. Police Dept., 839 F.2d 621, 624 (9th Cir. 1988); Shah v. County of L.A., 797 F.2d 743, 747 (9th Cir. 1986); Guillory v. County of Orange, 731 F.2d 1379, 1382 (9th Cir. 1984). Plaintiff has offered more than bare allegations to support his Monell claim.

Defendant City of Fresno's motion to dismiss Plaintiff's Monell claim is DENIED.

D. Fresno Police Department As A Defendant Plaintiff names both the City of Fresno and FPD as Defendants

in his complaint. Defendants argue that the FPD is not a proper party to the suit because it is not a "person" under Section 1983. Naming the FPD, which is a department of the City, as a defendant is redundant to naming the City of Fresno as a defendant. Because a municipal department is not a "person" under section 1983, asserting a claim against a municipal department is not an appropriate way to plead a section 1983 action against a municipality. Vance v. County of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996) (citing Stump v. Gates, 777 F.Supp. 808, 816 (D. Colo. 1991); see Rendon v. Fresno Police Department, No. 1:05-cv-00661, 2005 WL 1925859, at *4 (E.D. Cal. August 11, 2005).

Defendants' motion to dismiss the complaint as to the Fresno Police Department is GRANTED WITH PREJUDICE.

E. Negligence Claim as to the City of Fresno

Under California Government Code § 815, a public entity is not liable for an injury except as otherwise provided by statute. "In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not [on general tort provisions]." Eastburn v. Regional Fire Protection Authority, 31 Cal.4th 1175, 1183 (2003).

Under California law, a public entity cannot be held directly liable for common law negligence. In Munoz v. City of Union City, a tort cause of action was alleged directly against a city and police department for negligent training, supervision and retention of police officers who were alleged to have used excessive force in fatally shooting a person during a confrontation. 120 Cal.App.4th 1077 (2004). The appellate court concluded that the direct tort cause of action against the entity defendants could not be maintained because no statute provides for direct liability against such defendants. Id. at 1111-15.

Accordingly, a cause of action for common law negligence against the City of Fresno cannot be maintained. Defendants' motion to dismiss Plaintiff's negligence claim as to the City is GRANTED WITH PREJUDICE.

F. Intentional Infliction of Emotional Distress Claim

To state a cause of action for intentional infliction of emotional distress, a plaintiff "must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal.App.4th 1228, 1259 (2005).

Defendant contends that Plaintiff has failed to allege any facts to support that he suffered "severe or extreme emotional distress." However, Plaintiff alleges he "suffered serious bodily and emotional harm" in Paragraph 14 of his complaint. He also asserts under his fourth cause of action for intentional infliction of emotional distress that Defendants "pursued an outrageous course of conduct, intentionally and/or recklessly, legally causing Plaintiff ABEYTIA's severe emotional distress." (Doc. 2-2, Complaint at ¶32.) Further, along with Plaintiff's express allegations that he suffered serious "emotional harm" and "severe emotional distress," Plaintiff's description of Officer Johnson directing his canine to attack Plaintiff without cause and despite Plaintiff's compliance with the officers' demands is sufficient factual description to give rise to a cause of action for intentional infliction of emotional distress.

Defendants' motion to dismiss Plaintiff's claim for intentional infliction of emotional distress is DENIED.

G. Third Cause of Action

Defendants move for a more definite statement as to Plaintiff's third claim for "Interference with Civil Rights (Tom Banes Civil Rights Act)." (Complaint at 6.) Defendants argue the nature of Plaintiff's claim is unclear because he references Cal. Civ. Code § 51 in Paragraph 25 of his third claim. While a claim under Cal. Civ. Code § 51 is indeed a different claim than a Bane Act claim, see Stamps v. Superior Court, 136 Cal.App.4th 1441, 1449-51 (2006), Plaintiff titles his third cause of action "Interference with Civil Rights (Tom Banes Civil Rights Act)" and prays for judgment as to his third claim for damages for interference with civil rights. (Complaint at 6-7.) As such, it is clear Plaintiff is pursuing a Bane Act claim for interference with his civil rights and the complaint is "specific enough to apprise the defendant of the substance of the claim asserted against him or her." Stout, 946 F.Supp. at 804.

Defendants' motion for a more definite statement as to Plaintiff's third cause of action is DENIED.

V. CONCLUSION.

For the foregoing reasons:

1) Defendants' motion to dismiss Plaintiff's Fourteenth Amendment substantive due process claim is GRANTED WITH PREJUDICE;

2) Defendants' motion to dismiss Plaintiff's Fourteenth Amendment equal protection claim is GRANTED;

3) Defendants' motion to dismiss Plaintiff's claims under 42 U.S.C. §§ 1985, 1986 and 1988 is GRANTED;

4) Defendant City of Fresno's motion to dismiss Plaintiff's Monell claim is DENIED;

5) Defendants' motion to dismiss the complaint as to Defendant Fresno Police Department is GRANTED;

6) Defendants' motion to dismiss Plaintiff's negligence claim as to Defendant City of Fresno is GRANTED WITH PREJUDICE;

7) Defendants' motion to dismiss Plaintiff's claim for intentional infliction of emotional distress is DENIED; and

8) Defendants' motion for a more definite statement with respect to Plaintiff's third cause of action is DENIED.

IT IS SO ORDERED.


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