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Wade v. Fresno Police Dep't

June 8, 2010

DEON WADE, PLAINTIFF,
v.
FRESNO POLICE DEPARTMENT, ET AL., DEFENDANTS.



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

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS IN PART AND GRANTING PLAINTIFF LEAVE TO AMEND THE COMPLAINT BY JULY 12, 2010

(Document #31)

BACKGROUND

On April 9, 2009, Plaintiff filed a complaint. On December 2, 2009, Magistrate Judge Dennis L. Beck found that the complaint stated a claim for excessive force in violation of the Fourth Amendment and state law claims for assault and false imprisonment against Officer Fredrick Williams, Officer Haywood Irving, Officer David Wilkin, Officer Bernard Finley, and the Fresno Police Department ("Defendants"). The court then ordered the United States Marshal to serve the complaint on Defendants.

On March 3, 2010, Defendants filed a motion to dismiss the complaint. Defendants contend that the Fresno Police Department is an improper defendant. Defendants contend that all state law claims should be dismissed because Plaintiff has failed to allege compliance with the California Tort Claims Act. Defendants contend that the complaint fails to state a claim under the Eighth Amendment or Fourteenth Amendment, along with being legally frivolous. Finally, Defendants contend that they are entitled to qualified immunity.

On May 25, 2010, Plaintiff filed an opposition to Defendants' motion to dismiss. Plaintiff contends that he was subjected to an unreasonable search and seizure, and Defendants subjected him to cruel and unusual punishment and a denial of due process by kicking Plaintiff, punching Plaintiff and using excessive force on Plaintiff.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all of the complaint's material allegations of fact are taken as true, and the facts are construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). However, the court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the Supreme Court has explained: 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. 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

The plausibility standard is not akin to a 'probability requirement,' but it asks 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.' . . .

Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief.

Iqbal, 129 S.Ct. at 1949-50. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "If a complaint is dismissed for failure to state a claim, leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986). The court may not dismiss a complaint without leave to amend unless it is clear that the complaint could not be saved by any amendment. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

ALLEGED FACTS

The complaint alleges that in the early evening of April 25, 2008, at around 5:00 p.m., Plaintiff was at the home of an acquaintance named Lamont White. Plaintiff and Mr. White were sitting on the front porch of Mr. White's residence. The complaint alleges that Defendant Bernard and Defendant Williams stopped in front of the house and exited their patrol car. The complaint alleges Plaintiff then walked inside the house. The complaint alleges the police officers asked Mr. White for his identification and asked if Mr. White stayed at the house. The complaint alleges that Mr. White told the officers that this was his house and gave the officers his identification. The complaint alleges that the officers then asked Mr. White about Plaintiff, and Mr. White identified Plaintiff as "John". The complaint alleges that when the officers asked Mr. White whether Plaintiff had gone into the house to hide or avoid them, Mr. White said Plaintiff needed to use the bathroom.

The officers then saw Plaintiff standing inside the house's door frame. The complaint alleges Defendant Williams ordered Plaintiff to come outside. When Plaintiff complied, the complaint alleges Plaintiff was asked if he had any identification. Plaintiff told the officers that he had left it at the home of his girlfriend, Shamika. Upon the officers' request, Plaintiff gave them Shamika's address, and Defendant Finley called for another police unit to check at the other house to see if anyone could identify Plaintiff as "John Brison". The complaint alleges that Defendant Finally told Plaintiff he "would be sorry" if he was lying. The complaint alleges that Defendant Williams said that he neither believed Plaintiff's age nor Plaintiff's assertion that he had not had any prior police contact.

The complaint alleges that when the other officers did not contact Defendant Williams soon enough, Defendant Williams told Plaintiff that they would have to take him into custody and run a fingerprint check. Defendant Williams told Plaintiff he would have to handcuff Plaintiff as part of standard procedures. The complaint alleges that Plaintiff submitted to handcuffs, and he was driven to Shamika's house.

When they arrived at Shamika's house, the complaint alleges that Defendant Irving was already there. Defendant Irving and Defendant Finley had a conversation. The complaint alleges that all of a sudden, they both opened up the rear doors of the patrol car and told Plaintiff that here is "where the game ends" and Plaintiff needed to tell the truth. The complaint alleges that in an attempt to protest, and in a state of fear, Plaintiff started hollering for Shamika to come outside.

The complaint alleges that Defendant Finley and Defendant Williams started hollering and told Plaintiff to "shut up" and that Plaintiff was going to jail for assault on police officers. Plaintiff continued hollering in the hope that Shamika would come out and identify him. The complaint alleges that Defendant Finley then punched Plaintiff in the face and choked Plaintiff. The complaint alleges Plaintiff nearly went unconscious. The complaint alleges that Plaintiff felt his entire body burning and realized that Defendant Finley had tasered him. The complaint alleges that Defendant Williams and Defendant Wilkin then pulled Plaintiff out of the patrol car and again asked Plaintiff what his true name was.

The complaint alleges that, in a state of fear, Plaintiff ran towards the house hollering his girlfriend's name while still in handcuffs. The complaint alleges that Plaintiff ran around to the side of the house, believing that Shamika would hear him from there. The complaint alleges that Defendant Wilkin ran up to Plaintiff and kicked him in the back. The complaint alleges Plaintiff was able to keep his balance and continued to move to the other side of the house, screaming out Shamika's name. The complaint alleges that the police officers then pushed Plaintiff to the ground. The complaint alleges that the officers surrounded Plaintiff, and Defendant Wilkin kicked Plaintiff in the side of the rib cage. The complaint alleges that Plaintiff felt kicks and punches to his face and head area. The complaint alleges Plaintiff felt his body burning again. The complaint alleges that Plaintiff blacked out and, when he became conscious again, Plaintiff was in jail.

Attached to the complaint is a letter addressed to Jerry Dyer, Chief of the Fresno Police Department, requesting a full investigation into Plaintiff's arrest and the excessive force that took place. Also attached to the complaint is a letter from Lieutenant Anthony T. Martinez, Internal Affairs Commander, stating that an investigation involving ...


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