The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON DEFENDANT'S MOTION TO DISMISS PORTIONS OF PLAINTIFFS' COMPLAINT
This is an action for negligence, wrongful death and infringement of rights under the Fourth and Fourteenth Amendments to the United States Constitution. The action arises out of the shooting death of decedent Steven Anthony Vargas ("Decedent") by Fresno City Police Officer Mike Palomino ("Palomino") during the course and scope of Palomino's employment. In the instant motion, defendants City of Fresno ("Fresno"), Fresno City Police Chief Jerry Dyer ("Dyer") and Palomino (collectively, "Defendants") seek to dismiss Plaintiffs' Fourth Amendment claim as to all plaintiffs except Decedent's successor-in-interest, Julia Diane Enriquez ("Enriquez"). Defendants also seek to dismiss all claims against Dyer and Palomino in their official capacities and to dismiss suits against Fresno for state law claims on any theory of direct liability. Defendants also seek to dismiss the Fourth Amendment claim against Dyer on a theory of supervisor liability and seek to dismiss all state law claims against Dyer based on derivative liability. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs' complaint, filed on April 5, 2010, alleges that Decedent was shot without provocation or justification by Palomino while Decedent was sitting in his car on or near property located on McKinley Avenue in Fresno. The plaintiffs in this action are Enriquez, Decedent's wife and successor-in-interest, Jane Carlos Vargas, Decedent's mother, Amado Vargas, Decedent's father, Decedent's children Steven Anthony Vargas, Jr., Angelo Aleczander Vargas and step-children Jose Blas Figueroa, Jr., Hailey Rose Figueroa and Leah Realynn Gortarez-Enriquez (collectively, "Plaintiffs").
Plaintiffs' complaint alleges that Decedent drove slowly onto the property located at 4021 E. McKinley in Fresno, drove slowly across the driveway and came to a stop against the side of an unoccupied van. Decedent remained in his vehicle while Palomino arrived got out of his police vehicle and pulled a gun while approaching Decedent's vehicle. The complaint alleges that Palomino fired a several shots at Decedent as he sat in the vehicle without cause or justification. After pausing briefly, Palomino fired a second volley of several shots. Decedent was shot approximately nine times. Decedent was taken to Community Medical Center where he was pronounced dead at 3:18 p.m.
Plaintiff's complaint then alleges as follows:
11. This was the latest in a string of shootings of unarmed persons by the Fresno Police Department. On information and belief, in 2009 alone, four people shot by Fresno police were unarmed. Those prior shootings were unjustified ant the officers involved in those shootings were not properly disciplined for their actions. This has led to a culture and belief within the Fresno Police Department that it is permissible to use deadly force against unarmed persons and that no disciplinary action will be taken by the Fresno Police Department for doing so.
12. The actions of the officer who killed [Decedent] were taken pursuant to the policies and practices of the Fresno Police Department, including, but not limited to, the use of excessive force, and the use of deadly force in encounters with civilians when it is a grossly disproportionate response to a situation, and even when no reasonable basis exists for any use of force whatsoever, as in this case.
13. Despite their knowledge of the illegal policies and practices, the supervisory and policy-making defendants have maliciously and with deliberate indifference taken no effective steps to terminate the policies and practices; have not effectively disciplined or otherwise properly supervised the officers who engage in the policies and practices; have not effectively trained Fresno police officers with regard to the proper constitutional and statutory limits of the exercise of their authority; and have sanctioned the policies and practices through their deliberate or grossly negligent indifference to their detrimental effect on the constitutional rights of local residents.
14. Knowing of the civil rights abuses by Fresno police officers as well as at least one prior rights violations by Defendant police officer Palomino, Defendant Chief Dyer further sought to cover up and ratify the acts publicly, engaged in at least one act of retaliation against a police officer for reporting systemic civil rights violations by Fresno police, failed to remedy those systematic violations knowingly and with deliberate indifference, and promulgated policies on the use of deadly force by officers that deliberately repudiated the constitutional rights of Fresno residents. These acts, omissions, and policies of Chief Dyer and the City of Fresno were the moving force for the [P]laintiff's injuries.
Plaintiff alleges a claim was filed pursuant to California Government Code §§ 910 et seq. with the City of Fresno on February 1, 2010, and was denied on March 16, 2010.
The complaint alleges three claims for relief. The first claim alleges constitutional infringement in violation of 42 U.S.C. § 1983 as follows:
21. The [D]efendants' conduct violated the [P]laintiffs' rights in at least the following ways: the shooting of [Decedent] by police officer Palomino violated [Decedent's] Fourth Amendment rights to be free from the use of excessive force; and the killing of [Decedent] violated the Fourteenth Amendment liberty interest of Julia Diane Enriquez in the companionship and support of her husband, Jane Carlos Vargas and Amado Vargas in the companionship and support of their son, Steven Anthony Vargas, Jr., Angelo Aleczander Vargas in the companionship and support of their father, and Jose Blas Figueroa, Jr. Hailey Rose Figueroa, and Leah Realynn Gortarez Enriquez in the companionship and support of their stepfather.
Doc. # 1 at ¶ 21. Plaintiffs' second and third claims for relief allege wrongful death and negligence against all defendants under California common law.
The instant motion to dismiss was filed on April 26, 2010. Plaintiff's opposition was filed on May 24, 2010 and Defendant's reply was filed on May 28, 2010. On June 3, 2010, the court issued and order vacating hearing date of June 7, ...