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McClelland v. City of Modesto

September 9, 2009


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge


Documents #'s 29 and 30

This is a civil rights action for damages by plaintiff Sue McClelland ("Plaintiff") against entities City of Modesto, County of Stanislaus and Stanislaus Drug Enforcement Agency (collectively the, "entity Defendants") and individual defendants Robert Hunt, Steve Hoek, Patrick Crane, Officer McGill, Officer Gillespie, Officer Raman, Sergeant Young, and former Chief Roy Wasden (the "individual Defendants") (collectively "Defendants"). This action arises out of the execution of a search warrant on Plaintiff at the place of her residence that resulted in significant injury to Plaintiff. In this order, the court considers separate motions for dismissal filed by County of Stanislaus in one motion and the remainder of the entity and individual Defendants in the other. Federal subject matter jurisdiction exists pursuant to 28 U.S.C., section 1331. Supplemental jurisdiction over California state law claims exists pursuant to 28 U.S.C., section 1367. Venue is proper in this court.


The currently-operative First Amended Complaint ("FAC") was filed on June 18, 2009. The following facts are derived from the FAC unless otherwise noted.

At the time of events that gave rise to this action, Plaintiff was a 74-year old disabled retiree who lived at a rural address in Modesto. The FAC alleges that on April 29, 2008, at about 9:45 p.m. Plaintiff: was awakened from a deep sleep by crashing and banging on her front door. Assuming it was burglars, she ran to push the panic alarm button. Before she got there she was confronted by several armed men who neither identified themselves nor provided her with or showed her a search warrant. She was terrified and in shock, and not fully awake.

These men took [Plaintiff] outside while she was in her T-shirt and underwear without her glasses when she tripped and fell sustaining severe abrasions on her arms, shin, hands and neck. The men insisted she get up but she couldn't because she had difficulties because of two artificial hips. She was terrified. [Plaintiff] was interrogated about her tenant who rented her barn and pastures.

Paramedics were called who put [Plaintiff] on a gurney and she was transported to a hospital for treatment of her injuries. When she returned home in the early morning, her house had been ransacked: closet doors were left open; lights were left on; shoes were strewn all over and her shoe rack was broken. Defendants and each of them damaged [Plaintiff's] front door and wall in the entry hall, broke sprinkler heads, left yard gates open.

Doc. # 17 at ¶ 17.

The FAC alleges four claims for relief. None of the claims differentiates the alleged liability of the individual and or entity Defendants; that is, each claim for relief is apparently alleged against all Defendants. The FAC states that each of the individual Defendants is being sued in both their individual and official capacities. Plaintiff's first claim for relief alleges violation of Plaintiff's rights against unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. The second and third claims for relief allege false imprisonment and negligence, respectively, presumably under California common law. Plaintiff's fourth claim for relief alleges violation of Article 1, Section 7(a) and 13 of the California Constitution.


A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("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"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed fact5ual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").

The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:

"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."

Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).


I. Defendants' Motion to Dismiss Plaintiff's First Claim for Relief

Plaintiff's first claim for relief alleges that Defendants' actions violated her rights under the Fourth and Fourteenth Amendments to the United States Constitution in violation of 42 U.S.C. § 1983. The claim is alleged against the entity Defendants and against the individual Defendants in both their individual and official capacities. Defendants move to dismiss Plaintiff's first claim for relief as to all individual Defendants in their official capacities; and as to individual Defendant Wasden in his individual capacity. Defendants also seek to dismiss Plaintiff's first claim for relief as to all Defendants on the grounds it fails to sate a claim for relief under either the Fourteenth or Fourth Amendments.The court will consider each of Defendants' grounds for dismissal in turn and will sua sponte consider the sufficiency of Plaintiff's claims against the entity Defendants.

A. Claims Against Defendants in their Official Capacities

Defendants contend that Plaintiff's claims against individual Defendants in their official capacities should be dismissed with prejudice as procedurally improper. Defendant's contend that an action under 42 U.S.C. § 1983 against an individual defendant in his official capacity is essentially a suit against the entity that employs the defendant. Defendants are correct.

Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. [Citation.] Official-capacity suits, in contrast, "generally represent on ly another way of pleading an action against an entity of which the officer is an agent." [Citation.] as long as the government entity receives notice an an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.

Kentucky v. Graham, 473 U.S. 159, 165-166 (1985) (internal citations omitted). In the context of official capacity suits against a municipal officer, the Ninth Circuit has held that such a suit "is equivalent to a suit against the entity. [Citation.] When both a municipal officer and a local government entity are named, and the officer is named only in an official capacity, the court may dismiss the officer as a redundant defendant." Ctr. For Bioethical Reform, Inc. v. Los Angeles County Sheriff Dept., 533 F.3d 780, 799 (9th Cir. 2007). In the alternative, the court may construe an official capacity claim against an individual defendant as a suit against the entity. See Byrd v. Maricopa County Sheriff's Dept., 565 F.3d 1205, 1208 n.1 (9th Cir. 2009) (construing a suit against the county sheriff in his official capacity as a suit against the county).

The FAC alleges both individual and official-capacity claims against each of the named individual Defendants. These include officers McGill, Gillespie, Ramar and Young of the Modesto Police Department, Stanislaus County Sheriff's Department employees Hunt and Hoek, and Ceres Police Officer Crane. Defendants argue separately that Plaintiff's official-capacity claim against former Chief Wasden should be dismissed as duplicative of Plaintiff's ...

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