Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harvey v. City of Fresno

September 25, 2009

DEMETRIUS L. HARVEY, PLAINTIFF,
v.
CITY OF FRESNO, ET AL., DEFENDANTS.



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

MEMORANDUM DECISION AND ORDER RE: CITY OF FRESNO AND COUNTY COMPLAINT (Docs. 33, 34.) PLAINTIFF'S FIRST AMENDED OF FRESNO'S MOTIONS TO DISMISS

I. INTRODUCTION

Before the court are two motions to dismiss or, in the alternative, for a more definite statement. One motion is brought by Defendants City of Fresno, the Fresno Police Department, Chief Jerry Dyer, Officers Robert Gonzales, Jesus Cerda, Brent Willey, and Detectives Brian Valles and Brendan Rhames (the "City defendants"). The other motion is brought by Defendant County of Fresno (the "County defendant").*fn1

Defendants seek dismissal of Plaintiff's 42 U.S.C. § 1983 and related claims on grounds that the claims fail to allege necessary elements. Plaintiff, appearing pro se, contends that his first amended complaint satisfies requirements to plead necessary elements of his claims.

II. FACTUAL BACKGROUND.

The following facts are derived from Plaintiff's first amended complaint, ("FAC"), filed on June 3, 2009. (Doc. 31.)

Plaintiff, a 23 year-old African-American male, alleges that on January 7, 2007, he went over to a friend's apartment to help him move. (FAC ¶ 4, 22.) Around 8:00 p.m., Defendant Willey and Officer Yeager received a dispatch of an alleged attack and robbery of Matt Billet, a Comcast Cable employee who was attacked while working on a friend's cable box. (FAC ¶ 23.) Billet called 911 and told the dispatcher that "D-Boy" was wearing an orange t-shirt after asking someone in the background what "D-Boy" was wearing. (FAC ¶ 23.) Defendant Willey interviewed Billet and noted that he had a "slight" amount of redness on his right cheek that went away. According to the report, Defendant Willey did not photograph Billet because hewas unable to see any injuries. (FAC ¶ 24.) Billet refused all emergency medical services. (FAC ¶ 24.) Defendant Willey and Officer Yeager went to the crime scene and did not find any physical evidence. (FAC ¶ 25.)

At approximately 9:00 p.m., officers came to Rooter's apartment. (FAC ¶ 26.) Plaintiff went outside and gave his name and was eventually placed under arrest by order of Defendant Cerda. (FAC ¶ 27.) He was handcuffed and searched by Defendant Willey and placed in the patrol car. (FAC ¶ 27.) When Plaintiff arrived at the police station, he was interrogated by Defendants Gonzales and Valles. (FAC ¶ 27.) Plaintiff waived his rights and denied committing a robbery. (FAC ¶ 28.) Billet told Defendant Willey that he had a conflict with Plaintiff several weeks before the robbery, but Plaintiff told both officers that he was not involved "in any type of physical disturbance with a white male." (FAC ¶ 29.) Plaintiff also requested to take a polygraph test, but the request was denied. (FAC ¶ 30.) He told the officers that he would go to jail and then go to trial to prove his innocence. (FAC ¶ 28.)

On January 9, 2007, Defendant County of Fresno filed a Felony Complaint against Plaintiff and four other individuals who were in the apartment on January 7, 2007, including Rooter. (FAC ¶ 32.) Plaintiff was charged with (1) robbery; (2) possession of a controlled substance while armed with a firearm; and (3) possession of marijuana for sale. (FAC ¶ 32.) Plaintiff entered a not guilty plea at his arraignment. (FAC ¶ 34.) On March 13, 2007, Plaintiff appeared at the preliminary hearing. (FAC ¶ 35.) Billet testified and changed his story, explaining that he and a friend went to a friend's house to buy marijuana. (FAC ¶ 35.) He did not mention working for Comcast or working on his friend's cable box. (FAC ¶ 35.) Prosecutor Esmeralda Garcia was present at the hearing and heard the inconsistent testimony. (FAC ¶ 36.) Defendants Willey and Cerda also testified. (FAC ¶ 37.) Plaintiff was held to answer to the robbery charge, while the drug charges were dropped. (FAC ¶ 38.)

During the five day trial, Defendants Willey, Cerda, Rhames and Gonzales testified. (FAC ¶ 41.) Plaintiff testified on his own behalf, having rejected another plea offer the day prior to trial. (FAC ¶ 42.) On July 6, 2007, a jury found Plaintiff not guilty on all charges (second degree robbery, grand theft person and petty theft). (FAC ¶ 43.)

Plaintiff was incarcerated from January 7, 2007, to July 6, 2007. (FAC ¶ 20.) During this time, he alleges that he endured humiliation, suffered emotional distress, lost his job, and was separated from his pregnant girlfriend who eventually miscarried before her delivery date. (FAC ¶ 21.)

Plaintiff alleges he was wrongfully accused, wrongfully arrested, and wrongfully held in custody against his will for six months. All five Officers are alleged to have falsely detained, arrested, and imprisoned Plaintiff, and held him against his will without probable cause. Plaintiff also alleges that the Officers were motivated by racial prejudice because the victim is Caucasian, while the Plaintiff is African American.

Chief of Police, Jerry Dyer, and the City of Fresno are sued because they allegedly did not effectively train, supervise, and supervise City police officers with regard to the proper constitutional and statutory limits of the existence of their authority. Plaintiff also accuses them of initiating and promoting a meritless and malicious prosecution, which deprived Plaintiff of his constitutional rights.

The County of Fresno is sued because "Plaintiff hopes by bringing this lawsuit ... the County of Fresno will review their patterns and practices, and customs pertaining to false arrests and imprisonments, wrongful detentions and malicious prosecutions in a way that this tragedy will not be repeated by violating constitutional and civil rights of individuals." (FAC 13.) Plaintiff also alleges that the District Attorney's office, specifically Deputy District Attorney Esmeralda Garcia, knew or should have know that the alleged victim, Billet, was not telling the truth. (FAC 36.)

III. PROCEDURAL BACKGROUND.

The original complaint was filed on September 19, 2008. (Doc. 1, Original Complaint.) Fresno County moved to dismiss Plaintiff's Original Complaint on March 17, 2009. (Doc. 17.) City Defendants moved to dismiss the complaint on April 3, 2009. (Doc. 19.)

The hearing on Defendants' motions to dismiss, originally set for May 18, 2009, was continued to June 15, 2009 due to the press of court business. (Doc. 30.)

On June 6, 2009, Plaintiff filed his First Amended Complaint. The First Amended Complaint alleges nine claims for relief:

1. First Claim for Relief (All Defendants) - Denial of Constitutional Right Against Unreasonable Search and Seizure in violation of the Fourth and Fourteenth Amendments pursuant to 28 U.S.C. § 1983;

2. Second Claim for Relief (All Defendants) - False Arrest and Imprisonment;

3. Third Claim for Relief (all Defendants) - Malicious Prosecution;

4. Fourth Claim for Relief (all Defendants) - Intentional Infliction of Emotional Distress;

5. Fifth Claim for Relief (Officer Defendants) - Violation of California Civil Code § 52.1;

6. Sixth Claim for Relief (All Defendants) - Vicarious Liability;

7. Seventh Claim for Relief (City Defendants) - Negligent Hiring, Retention, Training, Supervision, and Discipline.

8. Eighth Claim for Relief (Officer Defendants) - Violation of California Civil Code § 52.7; and

9. Ninth Claim for Relief (Officer Defendants) - Negligence.

The FAC prays for injunctive relief enjoining City Defendants from authorizing, allowing, or ratifying the use of excessive force by its police officers; for a "public apology" from all Defendants; and for attorney's fees as provided by law.

County and City Defendants separately moved to dismiss Plaintiff's FAC on June 17, 2009. (Docs. 33, 34.) City Defendants contend that the above causes of action fail to allege necessary elements or facts for Defendants' liability and that Chief Dyer, Officers Cerda, Willey, and Brendan Rhames, and Detectives Gonzales and Valles are redundantly named in their official capacities. Alternatively, defendants seek a more definite statement in that the allegations are vague and ambiguous.

Fresno County argues that the claims arising out of the conduct of the DA's office should be dismissed as a matter of law as a County is not a proper defendant in a prosecutorial misconduct case. The County also moves to remove DA Elizabeth Egan from the case because she was found to be "absolutely immune" pursuant to an Order filed on December 5, 2008.

Plaintiff opposed the motions on August 27 and August 31, 2009. (Docs. 36, 38.) Plaintiff claims that his FAC is sufficient to put "these officers on notice" and that the motions should be denied because "discovery process has not been done." (Doc. 36, 4:1-4:4.)

III. LEGAL STANDARD

A. 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss can be made and granted when the complaint fails "to state a claim upon which relief can be granted." Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990).

To sufficiently state a claim to relief and survive a 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal citation and quotation marks omitted).

In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations." Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., --- F.3d ----, 2009 WL 1978730, at *3 (9th Cir. July 10, 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a motion to dismiss.").

The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 2009 WL 2052985, at *6 (9th Cir. July 16, 2009) (internal quotation marks omitted).

IV. DISCUSSION

A. City Defendants

1. 42 U.S.C. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.