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Low v. City of Sacramento

September 16, 2010

MONTE L. LOW, PLAINTIFF,
v.
CITY OF SACRAMENTO, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court are defendant's motions to dismiss and strike plaintiff's Second Amended Complaint. (Dkt. No. 5.) The court heard this matter on its law and motion calendar on September 16, 2010. Attorney Kathy Rogan appeared on behalf of defendant. Plaintiff, who is proceeding without counsel, appeared on his own behalf. For the reasons that follow, the undersigned will: (1) grant defendant's motion to dismiss without prejudice, and (2) deny defendant's motion to strike plaintiff's prayer for punitive damages.

I. BACKGROUND

Plaintiff's Second Amended Complaint, which is the operative complaint, alleges that defendant, a municipality, violated plaintiff's constitutional rights and seeks recovery pursuant to 42 U.S.C. § 1983. (Second Am. Compl., Dkt. No. 2 at 5-9.) Specifically, it alleges that defendant violated plaintiff's rights secured by the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution as a result of the actions of its employees.

(Second Am. Compl. ¶¶ 1, 4.)

Generally, plaintiff's claims arise from events that ultimately resulted in his arrest for public intoxication by law enforcement officers alleged to be employed by defendant, the City of Sacramento. (See id. ¶ 12.) Plaintiff alleges that on or about January 11, 2008, he was attacked by "an assailant" who, without warning, pushed him through the door of a pizza restaurant in Sacramento, California and "proceeded to severely beat [him], causing severe, potentially life threatening injuries." (Id. ¶ 7.) He further alleges that "[d]uring the beating, the assailant yelled at the plaintiff that he was an off-duty police officer." (Id. ¶ 8.)

The Second Amended Complaint alleges that "[o]fficers from the City of Sacramento Police Department responded to the assault," but "refused to take a complaint by the plaintiff." (Id. ¶¶ 9, 10.) Plaintiff alleges that, instead, the responding officers handcuffed him and placed him into a police car without telling him why he was being arrested or "reading him his rights." (Id. ¶ 10.) He alleges that once in the police car, he informed the officers that he was scared by their behavior and inquired "if they were 'going to finish the job, and kill me?'" (Id.) Plaintiff contends that the officers repeatedly refused to answer plaintiff's questions and, because of the officers' silence and refusal to "alleviate" plaintiff's fears, plaintiff believed that he would be killed. (Id.)

Plaintiff further alleges that upon arrival at the jail, the officers "'waved [sic] away' the jail's medic" and withheld treatment, despite his serious injuries. (Id. ¶ 11.) Plaintiff alleges that he remained "unobserved and untreated for approximately fifteen hours" and, additionally, was "not permitted to have a phone call or any other contact with the outside world." (Id.) He alleges that he was "released from jail without charges on January 12, 2008," and that upon release he learned that he had been arrested for "'public intoxication' from inhalants despite the fact that he was not intoxicated, and no sobriety or other tests had been administered." (Id. ¶ 12.)

On January 15, 2008, plaintiff allegedly attempted to file a complaint with the "Sacramento County Police," but the "police refused to file the complaint for assault" and indicated that they had completed their investigation. (Id. ¶ 13.) Plaintiff alleges that "defendant's police officers additionally refused to allow [him] to file a complaint against the responding officers" and "refused to provide [him] with any information regarding his attacker, so the identity of this person remains unknown to plaintiff to this date." (Id.)

Plaintiff asserts that "the actions of the defendant were intentionally undertaken to prevent [him] from discovering the identity of the off-duty police officer that attacked him, to punish [him] for having been assaulted by an off-duty police officer, and to deny the plaintiff access to justice for the crimes committed against him." (Id. ¶ 14.) Plaintiff alleges that he:

(1) has suffered physical pain and suffering as a result of the assault and the subsequent refusal of medical treatment; (2) has suffered mental pain and suffering as a result of the assault, "his unalleviated fear of being killed," the lack of medical treatment, and "the subsequent denial of any meaningful access to justice"; and (3) has been "denied employment due to the unfounded allegations of drug use in his arrest." (Id. ¶ 15.)*fn1

Plaintiff subsequently filed a complaint in California Superior Court, County of Sacramento, on July 8, 2009, alleging that defendant was liable for intentional torts and general negligence. (Compl., Dkt. No. 2 at 23-30.) On May 10, 2010, plaintiff filed a First Amended Complaint in the Superior Court, which, for the first time, indicated that plaintiff was seeking relief against defendant pursuant to 42 U.S.C. § 1983. (First Am. Compl., Dkt. No. 2 at 11-15.) On May 14, 2010, plaintiff filed the Second Amended Complaint in the Superior Court, which seeks recovery against defendant for violations of 42 U.S.C. § 1983. (Second Am. Compl., Dkt. No. 2 at 5-9.) Plaintiff seeks compensatory damages, punitive damages, attorney's fees to the extent plaintiff retains an attorney, and costs.

On June 25, 2010, defendant removed plaintiff's action to federal court pursuant to 28 U.S.C. § 1441(b).*fn2 (Notice of Removal, Dkt. No. 1.) Defendant subsequently filed its motions to dismiss and/or strike plaintiff's Second ...


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