The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER RE: DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT
Before the court is a motion to dismiss or, in the alternative, a motion for a more definite statement, brought by defendants City of Fresno Police Department, Officer Christopher Long and Officer Jeremy DeMoss (collectively "Defendants"). The motion is directed at the claims asserted by pro se plaintiffs Robert Morris and Michelle Morris in their Third Amended Complaint ("TAC"). Plaintiffs, who are proceeding in forma pauperis, oppose the motion. The following background facts are taken from the TAC (Doc. 37) and other documents on file in this case.
A. Brief Procedural History
Plaintiffs filed their initial complaint on September 23, 2008, and applied for and were granted the right to proceed in forma pauperis ("IFP"). Given their IFP status, the magistrate judge screened their initial complaint. See 28 U.S.C. § 1915(e)(2). The initial complaint contained claims for "False Arrest and Imprisonment," "Police Brutality," "Violation of Right to Due Process of Law," "Conspiracy to Deprive Equal Protection of Laws," "Physical and Emotional Problems," and "Officer Misconduct." The magistrate judge dismissed the complaint with leave to amend. (Doc. 15.)
Plaintiffs filed a first amended complaint which the magistrate judge screened and dismissed, again with leave to amend. (Doc. 29.) Plaintiffs filed a second amended complaint, it was screened, and the magistrate judge issued findings and recommendations which recommended that certain claims proceed while others, along with a named defendant (Brendan Rhames), be dismissed. (Doc. 31.)
In response to the magistrate judge's findings and recommendations, Plaintiffs filed a document entitled "Objection To Magistrate Judges Findings and Recommendation With Request For Amendment To Complaint." In this submission Plaintiffs agreed to voluntarily dismiss one claim, i.e., the false arrest and imprisonment claim. Plaintiffs also requested to add a claim for "municipal liability."
In an order adopting the magistrate judge's findings and recommendations, Plaintiffs' request to add a claim for municipal liability was construed as a motion to amend the complaint. This motion to amend was referred to the magistrate judge for consideration. In light of Plaintiffs' voluntarily dismissal of the false arrest and imprisonment claim, that claim was dismissed without prejudice and the magistrate judge's findings and recommendations were otherwise adopted. (Doc. 35 at 2.)
Subsequently, the magistrate judge granted Plaintiffs' motion to amend to add the municipal liability claim and Plaintiffs' TAC followed. (Doc. 36.) The magistrate judge reviewed the TAC and concluded, in an order dated August 4, 2009, that Plaintiffs appeared to state cognizable claims for relief. (Doc. 38.) Among other things, that order stated "service is appropriate" for Defendant "Fresno Police Department."
Plaintiffs' TAC names three defendants: the Fresno Police Department, Officer Christopher Long, and Officer Jeremy DeMoss. The beginning of the TAC reads:
Mr. & Mrs. Morris claim that their under 42 U.S.C. § 1983, 4th Amendment, also under jurisdiction over state claims alleging Municipal California State law. The District Court has Liability, a Monell claim, when civil in nature. (Doc. 37 at 1.) The remainder of the TAC consists of two sections: one section contains "Allegations by Plaintiff Mrs. Morris" followed by her request for relief, and another section contains "Allegations by Plaintiff Mr. Morris" followed by his request for relief.
Constitutional rights were violated. Actions claimed
In her allegations, Mrs. Morris asserts a claim for excessive force against officer DeMoss. In his allegations, Mr. Morris asserts a claim for excessive force against officer Long, a defamation claim against officer Long, and a "municipal liability" claim against the Fresno Police Department. Both plaintiffs request "unlimited" and punitive damages.
1. Mrs. Morris's Allegations
In her allegations, Mrs. Morris asserts a claim for "Excessive Force" against officer DeMoss stemming from an incident on "10/28/09." According to the TAC, Mrs. Morris was "a victim of an assault and robbery," presumably by some third party. Even though "Mrs. Morris hadn't broke no laws" she was "placed into handcuffs for unknown reasons." The TAC alleges that, without warning, Officer DeMoss "snatched Plaintiff up off the curb," "manhandle[d]" her and then, for "unknown reasons," drove her home:
Officer grabbing her by DeMoss snatched Plaintiff up off the curb by up, quickly and unexpectant [sic]. Officer DeMoss gave no the right elbow and lifting her straight warning of what he was going to do. Plaintiff Mrs. Morris was man-handle[d] in such a way that so much Force was bruses [sic] on the insides of Plaintiffs fore-arm and used in grabbing her elbow, that the Officer left large her bicep. Three to four inches in dameter [sic], Plaintiff wasn't arrested, but to her residence, 1/2 block away and just dropped off, by for unknown reasons taken Officer DeMoss. (Doc. 37 at 2 (emphasis omitted).) Mrs. Morris contends that "Officer DeMoss's actions were in violation of her federal Constitutional rights." (Id.)
2. Mr. Morris's Allegations
Mr. Morris asserts an "Excessive Force" claim against Officer Long stemming from an undated incident where Mr. Morris had his blood drawn. "During a blood draw" of Mr. Morris, Officer Long used an "arm-bar lock" on Mr. Morris and used "so much force that [his] shoulder was disclocated and his ligament torn." Although not clear, it appears Mr. Morris is alleging that Officer Long also threatened to break Mr. Morris's arm:
Officer Long screamed at the Plaintiff
Plaintiff Mr. Morris, 'to move so that (LONG) could brake telling the [sic] the arm.'[*fn1 ]
(Doc. 37 at 3 (emphasis omitted).) Mr. Morris asserts that Officer Long's actions "were unnecessary" because Mr. Morris was "very cooperative," "calm," "quiet" and "quite nice" throughout the encounter and he "never refused." Mr. Morris asserts that Officer Long's action violated his "Federal Constitutional rights." (Id.)
b. Municipal Liability Mr. Morris asserts a claim for "Municipal Liability" against the Fresno Police Department based on its policy, custom and/or practice regarding blood draws. Mr. Morris apparently attributes the "Forced Blood-draw" performed on him to this policy, custom, and or/practice.
c. Defamation Finally, Mr. Morris asserts a claim for defamation based on statements Officer Long made "under oath" on three occasions at a DMV administrative hearing. The TAC asserts:
On 04/29/08, Officer Long stated the D.M.V. administ[r]ative hearing for the Plaintiff Mr. Morris. While under oath, 'placed under arrest for being drunk in public.' That clearly stated that Mrs. Morris was, Officer DeMoss had taken Mrs. Morris to jail and that she was booked in.'
[A]lso on 06/12/08, Officer Long once again stated to the was taken into custody for violation PC647F.'
D.M.V. hearing officer, while under oath. 'Mrs. Morris Officer Long made these statements to the hearing Officer in attempt to discredit Mrs. Morris.
D.M.V hearing, ' I transported her (Mrs. Morris) home.' Officer DeMoss stated under oath on 09/10/08, at the (Doc. 37 at 3 (emphasis omitted).) At the end of the defamation claim, a single incomplete sentence reads: "A violation of California law." (Id. at 4.)
C. Summary Of Defendants' Arguments
Defendants' motion attacks all claims asserted in the TAC.
Defendants' move to dismiss both Mrs. Morris's and Mr. Morris's excessive force claims, arguing that these claims are insufficiently pled because the TAC does not allege that Officer DeMoss or Long were acting under color of law at the time of the alleged constitutional violations.
Defendants move to dismiss the § 1983 claim asserted against the Fresno Police Department on the ground that it is not the proper party to this claim.
Defendants move to dismiss the defamation claim on several grounds. To the extent that Mr. Morris attempts to assert a federal defamation claim cognizable under § 1983, such a claim is insufficiently pled. To the extent that Mr. Morris asserts a state law defamation claim, Defendants argue that this claim fails because: (i) the claim is based on statements that are protected by an absolute privilege; and (ii) the TAC does not plead compliance with the California Government Claims Act.
2. Motion For A More Definite Statement
Defendants also move for a more definite statement of the § 1983 excessive force claims, arguing that it is unclear when the alleged excessive force incidents occurred. According to Defendants, this lack of clarity prevents them from conducting a statute of limitations analysis.
As to Mrs. Morris's claim, Defendants note that she alleges, in the TAC, that the excessive force incident with Officer DeMoss occurred on "10/28/09." However, the TAC was filed before "10/28/09." As to Mr. Morris's claim, Defendants note that the TAC does not specify when the blood draw incident with Officer Long occurred. Apart from the lack of a specified date, Defendants further argue that Mr. Morris's excessive force claim is otherwise "impermissibly vague."
Defendants move for a more definite statement of the municipal liability claim, arguing that the "basis" of ...