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Tomada v. Spagnoli

July 28, 2010

JOSEPH TOMADA, PLAINTIFF,
v.
SANDRA SPAGNOLI, DOES 1-20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

Defendant Sandra Spagnoli ("Defendant") moves for dismissal of Plaintiff's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), arguing Plaintiff has failed to allege sufficient facts to state viable claims, and in the alternative, defendants are entitled to qualified immunity. For the reasons stated below, the motion is DENIED.

I. LEGAL STANDARD

A Rule 12(b)(6) dismissal motion tests the legal sufficiency of the claims alleged in the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the [plaintiff's] claim is and the grounds upon which relief rests...." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Dismissal of a claim under Rule 12(b)(6) is appropriate only where the complaint either 1) lacks a cognizable legal theory, or 2) lacks factual allegations sufficient to support a cognizable legal theory. Balistreri v. Pacific Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). To avoid dismissal, the plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547.

In deciding a Rule 12(b)(6) motion, the material allegations of the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. See al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, neither conclusory statements nor legal conclusions are entitled to a presumption of truth. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); Twombly, 550 U.S. at 555. "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 Serv., 572 F.3d 962, 969 (9th Cir. 2009).

II. BACKGROUND

Plaintiff alleges several as yet unidentified City of Benicia police officers violated his right to substantive due process when they failed to protect him from being attacked by intoxicated assailants. Plaintiff alleges in his Amended Complaint that he was "enjoying an evening out with family and friends" in Benicia, California, and "was accosted" by a number of intoxicated patrons as he was leaving a nightclub. (Am. Compl. ¶ 6.)

Plaintiff alleges that he "sought, and received, assistance from" City of Benicia police officers. (Id., ¶ 7.) Plaintiff alleges as the officers intervened, they learned "that one of the drunk patrons was illegally carrying a concealed knife" and that "the drunk patrons intended to use the illegal knife on plaintiff." (Id., ¶¶ 8-9.) Plaintiff further alleges the officers "resolved the situation by telling plaintiff and the drunk patrons to 'walk away' in different directions," which required Plaintiff "to walk down a dark, desolate street at nighttime." (Id., ¶¶ 11-12.) Plaintiff alleges that he protested, telling the officers "he would be safer if he just went back inside the club or waited in a lit area for someone to pick him up," but the officers "unequivocally told [him] to walk away." (Id., ¶ 13.) Plaintiff alleges after the officers left the scene, "the drunk, knife-wielding patrons found [him] as he was walking down the... street, chased him down and attacked him with a knife. As a result, plaintiff permanently lost his vision and was confined to a bed for almost a year." (Id., ¶ 16.)

III. DISCUSSION

Plaintiff alleges two federal claims under 42 U.S.C. § 1983 ("§ 1983") in his Amended Complaint. Plaintiff alleges in his first claim that unidentified City of Benicia police officers violated his "Fourth Amendment" right by failing to protect him from being battered by a drunk nightclub patron. Although Plaintiff states his first claim is made under the Fourth Amendment, the wording of the allegations in this claim, i.e. "defendant officers caused plaintiff to be subjected to a deprivation of liberty and/or property interest," and Plaintiff's arguments in his opposition to the dismissal motion show this claim is a Fourteenth Amendment substantive due process claim. (Am. Compl. ¶ 24, and Pl. Mem. of P.&A. in Opp'n to Def.'s Mot. to Dismiss ("Opp'n") 2:12-13.)

Plaintiff's second claim is alleged against Defendant Spagnoli and Doe defendants for "deficient policies, practices, procedures, and other protocols regarding the training of officers." (Am. Compl. ¶¶ 27-32.) The second claim incorporates the allegations in the first claim and is based upon Plaintiff's allegation that his injuries were the result of the City of Benicia's inadequate training "in regard to responding to situations like the one alleged [in his complaint]." (Id., ¶ 28.) Plaintiff alleges Defendant Spagnoli is the City of Benicia's Chief of Police and is "responsible for all policies, instruction, training and other protocol..." in the employing, training and supervising City of Benicia Police Officers. (Id., ¶¶ 4, 17.)

A. Substantive Due Process Claim Against Doe Police Officers

Defendant has not shown she has standing to seek dismissal of Plaintiff's first claim since she is not named as a defendant in this claim. Therefore, Defendant's motion to dismiss Plaintiff's first claim is denied. See Newson v. Countrywide Home Loans, Inc., No. C 09-5288 SBA, 2010 WL 2034769, at *3 (N.D. Cal. May 19, 2010) (denying ...


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