The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATION
Presently before the court is defendants Burrows Security Forces' ("Burrows") and Ryan Arbuckle's ("Arbuckle") joint motion to dismiss plaintiffs' Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 79.) The court submitted this matter without oral argument.*fn1 (Dkt. No. 102.) The undersigned has fully considered the parties' briefs and the record in this case and, for the reasons that follow, will recommend that:
(1) Burrows and Arbuckle's motion be granted, and (2) all of plaintiffs' claims alleged against Burrows and Arbuckle be dismissed with prejudice.
Plaintiffs' operative complaint, the Third Amended Complaint,*fn3 is a wide-ranging, 25-page complaint that alleges, in eight-point font, 38 claims for relief against 61 defendants. (Dkt. No. 66.) In dismissing plaintiffs' Second Amended Complaint (Dkt. No. 15), which spanned 163 pages and 607 numbered paragraphs, the court ordered that plaintiffs' Third Amended Complaint could not exceed 25 pages and must conform to Federal Rule of Civil Procedure 8(a), including the requirement that the pleading contain a short and plain statement of the claims alleged instead of recounting all of the evidence and arguments in support of those claims. (Dkt. No. 56 at 3.) The court had stated that "[t]his will be plaintiffs' last chance to comply." (Id.)
The allegations in the Third Amended Complaint regarding Arbuckle and Burrows are, in essence, collateral to an underlying internecine family dispute between the Winters family, of whom plaintiffs are a part, and defendant Virginia Armstrong, who is plaintiff Susan Winters's mother and grandmother to several of the plaintiffs. Relevant here, this family dispute gave rise to several proceedings in the Nevada County Superior Court, which resulted in two alleged incidents between Arbuckle and some of the plaintiffs.
Burrows is a private security company that provided security services to the Nevada County Superior Court at the time of the alleged, relevant incidents. At the time of the events that serve as the basis of plaintiffs' claims against Arbuckle and Burrows, Arbuckle was employed by Burrows as security personnel at the Nevada County Superior Court and staffed the courthouse's metal detector. (See Third Am. Compl. at 5-6.)
The two incidents relevant to this motion are alleged to have unfolded as follows. The first alleged incident involves Arbuckle and plaintiffs Cacey and Jennifer Winters, who had traveled to the Nevada County Superior Court. Although it is unclear from the operative pleading why these plaintiffs were present at the courthouse, the Third Amended Complaint alleges the following:
29. On January 21, 2008, Cacey and Jennifer Winters went to the Nevada County courthouse. Cacey and Jennifer went through the security check. They had to depend upon the actions of Defendant Arbuckle in order to enter the courthouse. Jennifer and Cacey both wore belts. Jennifer's belt rang the alarm but Arbuckle did not stop Jennifer. Cacey's belt rang the alarm and he stopped her.
30. Arbuckle made her come back through and take her belt off. Cacey believes Arbuckle was sexually harassing her. He is over six feet tall and three times Cacey Winters' weight. She was physically threatened because he came so close to her body and watched intensely as she took off her belt. She faced him. Jennifer looked at the security guard as he was making Cacey take off her belt and was embarrassed to watch. The security deputy enjoyed humiliating Cacey. He undressed her with his eyes. She had to pull her shirt up to take off her belt. (Third Am. Compl. at 5.) Plaintiffs further allege that they filed a complaint with the Nevada County Sheriff's Department. (Id.) They allege that, at first, under-sheriff Kimball initially called plaintiff Brent Winters and informed him that Arbuckle would be fired. However, and it is unclear exactly what plaintiffs are intending to convey in this allegation, plaintiffs contend that Kimball subsequently wrote to plaintiffs "and said they (Cacey and Jennifer) were satisfied with how the Sheriff's Department had handled the situation." (Id.) Plaintiffs allegedly "responded that they were not satisfied," and they allege that Arbuckle still works at the courthouse. (Id.)
The second incident at the courthouse is alleged to have involved Arbuckle and plaintiff Brent Winters. On April 4, 2008, several members of the Winters family entered the courthouse to attend a hearing. Plaintiffs allege that "[a]s plaintiff Brent Winters entered the courthouse, Arbuckle "security deputy" assaulted Brent Winters, threatened him with arrest, and challenged him to step outside and fight." (Third Am. Compl. at 6.) They further allege that as the Winters family left the courthouse, "Arbuckle again attempted to assault Brent Winters and get him to fight with him." (Id.)
Plaintiffs' Third Amended Complaint contains no material factual allegations against Burrows.*fn4 However, it alleges the following eleven claims against Arbuckle: civil battery (claim 9); civil assault (claim 10); "Sexual Assault and Harassment" (claim 11); trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); violation of the First Amendment of the U.S. Constitution (claim 26); conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(d) (claim 31); loss of consortium (claim 36); and intentional infliction of emotional distress (claim 38). Claims 13, 14, 15, 18, 31, 36, and 38 are also alleged against Burrows by virtue of the fact that plaintiffs have alleged these claims against "All Defendants." In response to plaintiffs' Third Amended Complaint, Arbuckle and Burrows filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 79.)
There are several, separately-filed motions pending before the court. Despite the court's previous order that plaintiffs file a separate opposition to each pending motion (Dkt. No. 89 at 6), plaintiffs filed a consolidated opposition. (See Dkt. No. 99.) Plaintiffs filed their opposition on January 13, 2010, despite a court-ordered deadline of January 6, 2010. (Compare Dkt. Nos. 89 with 99.) Although plaintiffs' opposition was untimely and need not be considered, the undersigned has, out of an abundance of caution, considered that opposition in arriving at the findings and recommendations that follow.
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949).
The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect.*fn5 See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).
A. Plaintiffs' Section 1983 Claims Against Arbuckle and Burrows (Claims 14, 15, and 18)
Plaintiffs sued "All Defendants" for violation of 42 U.S.C. § 1983 (claim 14), for engaging in a conspiracy to violate 42 U.S.C. § 1983 (claim 15), and for "civil conspiracy," which appears to be an additional claim alleging a conspiracy to violate Section 1983. (See Third Am. Compl. at 19-20.) Arbuckle and Burrows move to dismiss these claims for failure to state a claim on the grounds that: (1) neither Arbuckle nor Burrows are, or are alleged to be, state actors or took action under color of state law; and (2) plaintiffs have not alleged that Arbuckle or Burrows participated in any act that deprived plaintiffs of their constitutional or statutory rights.
"Section 1983 imposes civil liability upon an individual who 'under color [of state law] . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws.'" Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (quoting 42 U.S.C. § 1983). "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Conclusory allegations of a violation of Section 1983 or a conspiracy to violate Section 1983 will not survive a motion to dismiss. See, e.g., Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (affirming dismissal of plaintiff's second amended complaint as a result of plaintiff's "conclusory allegations" of a conspiracy to deprive him of his constitutional rights in violation of Section 1983); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977) ("Conclusionary allegations, unsupported by facts, have consistently been rejected as insufficient to state a claim under the Civil Rights Act.").
As an initial matter, the undersigned rejects Arbuckle and Burrows's argument that plaintiffs' Section 1983 claims should be dismissed with prejudice as to them on the grounds that plaintiffs have not alleged that Arbuckle or Burrows are "state actors." Although plaintiffs have not made such an express allegation, and dismissal without prejudice would be warranted on that basis, it is apparent from plaintiffs' opposition brief that plaintiffs might be able to allege action under color of state law in an amended pleading. To determine whether a private actor acts under color of state law, the court must evaluate whether the alleged infringement of federal rights is "fairly attributable" to the government even though it is alleged to have been committed by private actors. See Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003). The Supreme Court has explained that "state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (citation and quotation marks omitted)). Plaintiffs' opposition suggests that Burrows contracts with Nevada County to provide security services at the Nevada County Superior Court's courthouse entrance. This suggests, at least at the pleading stage, the existence of a possible sufficient nexus between Burrows or its employees and a state actor, Nevada County, to support an allegation that acts undertaken by Arbuckle or Burrows were under color of state law.
Nevertheless, the undersigned will recommend that claims 14, 15, and 18 be dismissed as to Arbuckle and Burrows with prejudice. As to claim 14, alleging that "All Defendants" individually violated plaintiffs' constitutional rights, plaintiffs allege:
Paragraphs above incorporated by reference. Defendants, by their actions and acting under the color of law, subjected Plaintiffs, and caused Plaintiffs to be subjected, to the deprivations of their rights, privileges, and immunities secured by the Constitution and laws of the State of California and of the United States of America, Plaintiffs claim damages under 42 U.S.C. § 1983 for their injuries set forth above.
(Third Am. Compl. at 19.)*fn6 Plaintiffs' fourteenth claim for relief should be dismissed with prejudice because plaintiffs' allegations related to this claim are conclusory to a fatal degree. Plaintiffs have only alleged a series of legal conclusions, which are unsupported by any factual allegations substantiating a violation of Section 1983. See Sherman, 549 F.2d at 1290; see also Caviness, 590 F.3d at 812 ("[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim" (citation and quotation marks omitted, modification in original).). Additionally, plaintiffs' Third Amended Complaint fails to plead an essential element of a Section 1983 claim-it does not allege a particular right secured by the Constitution or laws of the United States that was purportedly violated by either Arbuckle or Burrows. See Long, 442 F.3d at 1185. Nothing stated in the remainder of the Third Amended Complaint or plaintiffs' opposition brief suggests that these pleading deficiencies could be remedied through the filing of a fourth amended complaint.
Plaintiffs' Section 1983 conspiracy claims, claims 15 and 18, are also fatally flawed. As an initial matter, the undersigned notes that plaintiffs have not alleged any specific facts relating to Arbuckle's or Burrows's participation in conspiracies that give rise to these claims. In their fifteenth claim, with no mention of Arbuckle or Burrows, plaintiffs allege that "Defendants Logsdon, Michael Armstrong, Jordan, Wade, Harpainter, and Ford worked in concert with Defendants from the Nevada County Superior Court, Sheriff's Department, Adult Protective Services, and other agencies." (Third Am. Compl. at 20.) However, they also allege that a state court judge entered a restraining order "on his own motion." (Id.) Additionally, plaintiffs allege that defendants Logsdon and Harpainter "worked in concert with" with defendants Chelsey and Frooman. (Id.) Elsewhere in the Third Amended Complaint, defendant Harpainter is alleged to have been an attorney that the Nevada County Superior Court appointed for Virginia Armstrong in connection with certain restraining order proceedings before that court. (Id. at 7.) Defendants Chelsey and Frooman are alleged to be Assistant United States Attorneys in Illinois who were prosecuting plaintiff Brent Winters, an attorney, on criminal charges and wrote a letter to defendant Logsdon offering assistance with the unlawful detainer action. (Id. at 6, 24.) Plaintiffs' eighteenth claim is largely redundant of the fifteenth claim, at least as it relates to allegations, or the lack thereof, against Arbuckle and Burrows.
"To establish liability for a conspiracy in a § 1983 case, a plaintiff must 'demonstrate the existence of an agreement or meeting of the minds' to violate constitutional rights." Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (quoting Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999)). The agreement need not be overt, however, and "may be inferred on the basis of circumstantial evidence such as the actions of the defendants." Id. (citation and quotation marks omitted). "To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy." Id. (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir. 1989) (en banc)).
Plaintiffs' fifteenth and eighteenth claims for relief fail insofar as Arbuckle and Burrows are concerned. Initially, it bears repeating that plaintiffs have alleged no facts regarding Arbuckle or Burrows insofar as any Section 1983 conspiracy is concerned. Moreover, plaintiffs have not alleged facts supporting the existence of an agreement between Arbuckle or Burrows and any other party to violate plaintiffs' constitutional rights. In their opposition, plaintiffs rely on the allegation that the Nevada County sheriff has "authority" over Burrows with respect to the provision of courthouse security. However, this allegation still does not suggest an agreement to violate plaintiffs' constitutional rights. Finally, ...