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Jody Lynn Von Haar v. City of Mountain View

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


March 1, 2011

JODY LYNN VON HAAR,
PLAINTIFF,
v.
CITY OF MOUNTAIN VIEW, TONY VIERYA, AKA JOSE VIEYRA, TY ZEMLOK,
FERNANDO MALDONADO, DOES 1-100,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

United States District Court For the Northern District of California

Defendants City of Mountain View, Tony Vierya (aka Jose Vieyra), Ty Zemlok, and Fernando Maldonado move to dismiss Plaintiff's First Amended Complaint ("FAC"). Pursuant to Civil Local Rule 7-1(b), the Court concludes that this motion is appropriate for determination 20 without oral argument. Having considered the parties' submissions and the relevant law, the Court GRANTS Defendants' motion to dismiss with leave to amend. The motion hearing and case management conference previously scheduled for March 3, 2011 are therefore vacated.

I.Background

This action involves the alleged use of excessive force and infliction of cruel and unusual punishment by police officers employed by the City of Mountain View. Plaintiff Jody Lynn Von Haar alleges that on September 15, 2009, she was a passenger in a vehicle stopped by Defendant police officers Ty Zemlok and Fernando Maldonado. FAC ¶ 9. Defendant police officer Tony Vieyra arrived at the scene after the initial stop, and in the course of restraining Plaintiff allegedly caused a comminuted fracture to her right arm. Id. Plaintiff claims that Defendants then handcuffed and restrained her, and transported her to a hospital emergency room without any prior 3 first aid, all of which resulted in bodily harm, physical pain and suffering, and emotional distress.

Id. Plaintiff claims that Defendants Zemlok and Maldonado caused further injury to Plaintiff by failing to assert control over the crime scene and failing to inform, supervise, and restrain Defendant Vieyra in order to prevent the excessive use of force. FAC ¶ 10. Plaintiff also claims that Defendant City of Mountain View fails to adequately train its police officers regarding: (1) how to "self-organize into a led team at the scene of an arrest"; (2) first aid procedure and symptoms of basic injuries and shock; and (3) the need to seek and obtain emergency medical 10 response by trained personnel when an injury occurs in the course of an arrest. FAC ¶ 12. Plaintiff contends that she was injured as a direct and proximate result of the City's failure to adequately United States District Court For the Northern District of California train its officers. Id. the instant action against the City of Mountain View and against police officers Vieyra, Zemlock, 15 and Maldonado in their individual capacity. Defendants initially moved to dismiss Plaintiff's

Section 1983 claim against the City of Mountain View and to dismiss Plaintiff's state law claims in their entirety. The Court granted Defendants' motion with leave to amend on November 12, 2010, and Plaintiff subsequently filed a First Amended Complaint. Like the original Complaint,

§ 1983 for violations of Plaintiff's right to be free of cruel and unusual punishment guaranteed by the Eighth and Fourteenth Amendments; and (2) a claim under various provisions of the California

Complaint in its entirety.

sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A Rule 12(b)(6) dismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare System, LP, 534 After first making a claim of loss to the City of Mountain View, FAC ¶ 14, Plaintiff filed Plaintiff's First Amended Complaint asserts two causes of action: (1) a claim pursuant to 42 U.S.C. 20

Tort Claims Act. Defendants now move under Rule 12(b)(6) to dismiss Plaintiff's First Amended

II.Legal Standard

A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal F.3d 1116, 1121 (9th Cir. 2008). In considering whether the complaint is sufficient to state a 2 claim, the court must accept as true all of the factual allegations contained in the complaint.

"allegations that contradict matters properly subject to judicial notice or by exhibit" or "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." St. Clare v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008). While a complaint need not allege detailed factual allegations, it "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 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). However, the court need not accept as true (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible 10 when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. If a court grants a motion to dismiss, leave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

Amendment rights, pursuant to 42 U.S.C. § 1983. Defendants move to dismiss this claim on a number of grounds. First, they argue that Plaintiff cannot bring a claim under the Eighth Amendment because Plaintiff was a pre-trial detainee, rather than a prisoner, at the time of the events alleged. Second, they argue that even if Plaintiff's claims are construed as claims of excessive force under the Fourth Amendment or deliberate indifference under the Due Process Clause of the Fourteenth Amendment, a number of Plaintiff's claims against the individual defendants fail to allege sufficient facts to state a claim for relief. Third, Defendants argue that Plaintiff's amended allegations of municipal liability remain insufficient to state a viable claim for relief under Section 1983 against the City of Mountain View. not provide a cognizable legal basis for Plaintiff's Section 1983 cause of action. It is well- United States District Court For the Northern District of California

III. Discussion

A.Section 1983 Claim (First Cause of Action)

Plaintiff's first cause of action alleges violations of Plaintiff's Eighth and Fourteenth

1.Constitutional Basis for Plaintiff's Claims

As a threshold matter, the Court agrees with Defendants that the Eighth Amendment does established that "the Fourteenth Amendment's Due Process Clause, rather than the Eighth

Amendment's protection against cruel and unusual punishment, applies to pretrial detainees."

Plaintiff alleges that she was injured during the course of a stop or arrest and immediately thereafter, and there is no indication that she was in custody as a prisoner at that time.

There remains a question, however, as to whether Plaintiff's claims are more properly brought under the Fourth Amendment or the Due Process Clause of the Fourteenth Amendment.

Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). As Defendants point out, Accordingly, the Eighth Amendment does not apply to Plaintiff's claims.

Defendants note that the FAC can reasonably be understood as alleging a claim of excessive force against Defendant Vierya. Such claims are properly brought under the Fourth Amendment, made applicable to states and divisions of the states through the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989) ("all claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach"). Likewise, Plaintiff's claim that Defendants caused her injury by handcuffing and restraining her after Defendant Vierya fractured her arm appears to plead excessive use of force cognizable under the Fourth Amendment. during and immediately following an arrest as a claim properly brought under the Fourth Amendment and subject to the Fourth Amendment's objective reasonableness standard.*fn1 See Tatum v. City and County of San Francisco, 441 F.3d 1090, 1098-99 (9th Cir. 2006) (evaluating police decision not to perform CPR after arresting and handcuffing plaintiff under Fourth 586, 595-96 (7th Cir. 1997) (concluding that the Supreme Court's decision in Graham requires claims of failure to provide medical attention during arrest to be analyzed under the Fourth Amendment reasonableness standard); Price v. County of San Diego, 990 F. Supp. 1230, 1241 & n.22 (S.D. Cal. 1998) (analyzing failure to give CPR after arrest as Fourth Amendment claim).

United States District Court For the Northern District of California Finally, the Ninth Circuit has recently treated the failure to provide adequate medical care Amendment reasonableness standard); see also Estate of Phillips v. City of Milwaukee, 123 F.3d 24

Thus, to the extent that Plaintiff alleges a failure to provide first aid during and immediately following her arrest, this claim, too, appears to be most properly brought under the Fourth

Based on this analysis, the Court agrees with Defendants that Plaintiff's entire Section 1983 cause of action should be dismissed with leave to amend to allege the proper constitutional basis for her claims. However, Defendants also argue that a number of Plaintiff's constitutional claims fail even if construed as claims brought under the appropriate constitutional provision. The Court will therefore briefly address the deficiencies identified by Defendants. arm while attempting to restrain her. FAC ¶ 9. Defendants concede that these allegations can be reasonably understood to allege a claim of excessive force against Defendant Vierya and that Court agrees. alleges that after Defendant Vierya caused a comminuted fracture to Plaintiff's arm, Defendants "handcuffed and restrained her, and transported her in a patrol car to a hospital emergency room without any prior first aid." FAC ¶ 9. To the extent that Plaintiff intends to allege that Defendants used excessive force in handcuffing and restraining Plaintiff, knowing that she was injured,

Plaintiff may amend and clarify these allegations to state a Fourth Amendment claim. As to the denial of first aid, the Court agrees with Defendants that the facts alleged are not sufficient to plausibly establish a constitutional violation. The Ninth Circuit has stated that a police officer may fulfill the constitutional duty to provide medical care to persons injured in the course of an arrest "by either promptly summoning the necessary medical help or by taking the injured detainee to a 27 hospital." Tatum, 441 F.3d at 1099 (quoting Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 Amendment.

2.Claim against Defendant Vierya Plaintiff alleges that Defendant fracture to Plaintiff's right Vierya caused a comminuted United States District Court For the Northern District of California Plaintiff should be given leave to amend to allege this claim under the Fourth Amendment. The 3.Other Claims against the Individual Defendants

Plaintiff alleges two additional claims against the individual Defendants. First, Plaintiff (9th Cir. 1986)). Law enforcement officers are not required to provide "what hindsight reveals to be the most effective medical care for an arrested suspect," Tatum, 441 F.3d at 1098, nor are they required to administer first aid or emergency medical treatment themselves. See id. at 1099

(finding no affirmative duty on the part of the police to administer CPR). Here, Plaintiff alleges that Defendants transported her in a patrol car to a hospital emergency room. FAC ¶ 9. There are no allegations that Defendants unduly delayed in taking Plaintiff to the hospital, and the FAC does 6 not suggest that providing care in this manner was otherwise objectively unreasonable. However, 7 as Plaintiff may be able to allege facts to cure these deficiencies, Plaintiff is granted leave to amend these allegations.

Vieyra in order to prevent the use of excessive force." FAC ¶ 10. Defendants argue that these allegations are not sufficient to state a constitutional violation under the Due Process Clause.

Zemlok and Maldonado liable for Defendant Vieyra's alleged use of excessive force in violation of 17 the Fourth Amendment. Based on Plaintiff's allegations that Defendants Zemlok and Maldonado 18 failed to supervise Defendant Vieyra, it appears that Plaintiff intends to allege some form of 19 supervisor liability. Under Ninth Circuit precedent, a supervisor may be held liable under Section 20

1983 for "1) their own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or ) for conduct that showed a reckless or callous indifference to the rights of others." Edgerly v. City and County of San Francisco, 599 F.3d 946, 961 (9th Cir. 2010) (quoting Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000)). A supervisor's failure to intervene and bring his subordinates under control may, under some circumstances, support liability under Section 1983.

Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003). Here, however, while Plaintiff alleges that Defendants Zemlock and Maldonado failed to assert control and supervise Defendant Second, Plaintiff alleges that Defendants Zemlock and Maldonado caused injury to Plaintiff "in that Officer Tony Vieyra, aka Jose Vieyra was not the original arresting officer and arrived at the scene after the traffic stop, and said Ty Zemlok and Fernando Maldonado failed to assert United States District Court For the Northern District of California control over the crime scene and to inform, supervise and restrain said Tony Vieyra, aka Jose While that may be true, the Court reads Plaintiff's allegations as an attempt to hold Defendants Vieyra, the FAC does not allege that Vieyra was a subordinate officer over whom Zemlock and Maldonado had supervisory authority. Rather, the FAC merely indicates that Zemlock and Maldonado were first to arrive on the scene and that Vieyra arrived later. Without more, this is not sufficient to plausibly suggest that Zemlok and Maldonado may be held liable as supervisors for Vieyra's allegedly unconstitutional conduct. Because Plaintiff may be able to allege facts sufficient to cure this deficiency, Plaintiff is granted leave to amend this claim. to Section 1983. As the Court explained in its previous order, a local government may be held liable under Section 1983 only if the plaintiff can demonstrate that the government's official policy or custom was the "moving force" responsible for infliction of her injuries. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694 (1978). Plaintiff's amended complaint alleges that the City of Mountain View maintains a practice and custom of failing to train, or failing to adequately train, its police officers regarding: (1) how to "self-organize into a led team at the scene of an arrest . . . where more than one police unit responds . . . in order to conduct [an arrest] in an orderly and lawful manner and avoid injury to the suspect"; (2) first aid procedure and 16 symptoms of basic injuries and shock; and (3) the need to seek and obtain emergency medical response by trained personnel when an injury occurs in the course of an arrest. FAC ¶ 12.

"[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). In order for liability to attach, the failure to train must reflect "a 'deliberate' or 'conscious' choice by a municipality." Id. at 389. Such deliberate indifference may be shown, for instance, where "in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id. at 390. The plaintiff must also demonstrate that the deficiency in training actually caused the constitutional violation alleged. Id. at 391.

4.Municipal Liability Claim

Finally, Defendants argue that Plaintiff fails to state a claim for municipal liability pursuant United States District Court For the Northern District of California allege that the City of Mountain View was motivated by deliberate indifference or that the failure to train reflected a deliberate or conscious choice by the City. The Ninth Circuit, however, has not required plaintiffs to plead claims of municipal liability in detail in order to survive a motion to dismiss.*fn2 See Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007) ("In this circuit, a claim of 6 municipal liability under [§] 1983 is sufficient to withstand a motion to dismiss even if the claim is 7 based on nothing more than a bare allegation that the individual officers' conduct conformed to 8 official policy, custom, or practice.") (quoting Galbraith v. County of Santa Clara, 307 F.3d 1119, 9

Defendants argue that Plaintiff's claim of municipal liability fails because the FAC does not 1127 (9th Cir. 2002)); see also Buckheit v. Dennis, 713 F. Supp. 2d 910, 920 (N.D. Cal. 2010). It is true that Plaintiff's amended complaint does not reference the deliberate indifference standard.

United States District Court

For the Northern District of California

Nonetheless, Plaintiff alleges that Mountain View "maintained a practice and custom" of failing to adequately train its officers, and Plaintiff identifies three specific areas in which Mountain View's training was deficient. FAC ¶ 12. The training areas identified are closely related to Plaintiff's theory of how her injury occurred -- that is, through poor coordination of multiple police response units and the failure by arresting officers to recognize and seek appropriate medical care for her injuries. See City of Canton, 489 U.S. at 391 ("for liability to attach . . . the identified deficiency in a city's training program must be closely related to the ultimate injury"). Moreover, it is plausible that the City of Mountain View knew that its officers would be required to coordinate multiple police units at the scene of an arrest and to respond adequately to persons injured in the course of an arrest. Accordingly, if Plaintiff is correct the City's training on these issues was inadequate, she may also be able to show that the failure to train amounted to deliberate indifference. The Court thus finds that if Plaintiff's allegations of municipal liability are sufficient to survive a motion to dismiss. However, as Plaintiff's municipal liability claim cannot be premised on Eighth Amendment violations, as discussed above, the claim will be dismissed with leave to amend.

for violations of her Eighth Amendment rights is DISMISSED with leave to amend.

For the reasons discussed above, Plaintiff's cause of action pursuant to 42 U.S.C. § 1983

B.California Tort Claims Act (Second Cause of Action)

Plaintiff's second cause of action alleges claims under the California Tort Claims Act, Cal. Gov. Code § et seq, also known as the Government Claims Act. As the Court previously explained, the Government Claims Act, is "a thoughtfully devised statutory plan that is designed to control the basis under which public entities may be liable for damages." Roberts v. County of Los marks and citation omitted. It defines the scope of liability for public entities and public employees, and also sets forth detailed procedural requirements for claims against public entities.

Id. As to public employees, the Act provides that "a public employee is liable for injury caused by his act or omission to the same extent as a private person," except as otherwise provided by statute.

Cal. Gov. Code § 820. As to public entities, including cities, Cal. Gov. Code § 811.2, the Act eliminates common law tort liability and requires instead that any liability be based on statute.

The Act further provides a statutory basis for vicarious municipal liability for injuries "proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative." Cal. Gov. Code § 815.2.

she failed to specify any particular statutory provision or common law cause of action on which liability could be predicated. As amended, Plaintiff's complaint now predicates liability on six sections of the Government Claims Act. Five of these provisions define the scope of liability for public entities or employees, but do not provide an independent cause of action. See Cal. Gov't Code § 815.2(a) (providing immunity for public entities); id. § 815.6 (providing for public entity liability where the entity is under a mandatory statutory duty to protect against the injury suffered);

Angeles, 175 Cal. App. 4th 474, 480, 96 Cal. Rptr. 3d 60 (Cal. Ct. App. 2009) (internal quotation

United States District Court For the Northern District of California Guzman v. County of Monterey, 46 Cal. 4th 887, 897, 209 P.3d 89 (2009); Cal. Gov. Code § 815. 18

The Court previously dismissed Plaintiff's Government Claims Act cause of action because id. § 820(a) (providing that public employees are liable to the same extent as private persons); id.

§ 845 (barring liability for failure to provide sufficient police protection services); id. § 950 Plaintiff may rely on some of these provisions to establish that Defendants are not immune from liability, these provisions, on their own, do not establish a basis for liability.

may be held liable for "injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody . . . . if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care." Had Plaintiff been a prisoner at the time of the events alleged in (providing that claim presentation requirement does not apply to public employees). While

The sixth provision, Cal. Gov't Code § 845.6, provides that public entities and employees the FAC, she might be able to predicate liability on § 845.6. However, § 845.6 applies only to "an United States District Court

For the Northern District of California inmate of a prison, jail, or penal or correctional facility." Cal. Gov't Code § 844; see also Lawson (noting that Cal. Gov't Code § 844 defines "prisoner" for purposes of liability under § 845.6). An arrestee "becomes a prisoner, as a matter of law, upon his or her initial entry into a prison, jail, or penal or correctional facility, pursuant to penal processes." Cal. Gov't Code § 844. The First

Amended Complaint indicates that Plaintiff was injured during a traffic stop and then transported to the hospital. There are no allegations that Plaintiff ever entered into a jail or other correctional facility or that she underwent booking or any other penal process. Accordingly, Plaintiff was not a prisoner for purposes of the Government Claims Act, and she cannot establish liability under

The Court has already dismissed Plaintiff's state law cause of action once. However, it

remains possible that Plaintiff can cure the deficiencies in her complaint by identifying some statutory or common law cause of action, such as an intentional tort, that provides a state-law basis for liability. Accordingly, the Court GRANTS Defendants' motion to dismiss Plaintiff's second cause of action with leave to amend. If Plaintiff's second amended pleading still does not allege a 27 viable state law cause of action, however, her state law claim will be dismissed with prejudice. v. Superior Court,180 Cal. App. 4th 1372, 1384, 103 Cal. Rptr. 3d 834 (Cal. Ct. App. 2010) § 845.6. 22

IV.Conclusion

For the foregoing reasons, the Court GRANTS Defendants' motion to dismiss Plaintiff's First Amended Complaint with leave to amend. The motion hearing and case management conference previously scheduled for March 3, 2011, are hereby VACATED. Plaintiff shall file a

Second Amended Complaint, if any, within 14 days of this Order. The Court notes that Plaintiff is represented by counsel, and the Second Amended Complaint will be her third attempt to 7 state a claim in this action. Plaintiff is thus advised that if the Second Amended Complaint fails to 8 cure the deficiencies identified in her previous pleadings, the Court will not be inclined to grant 9 further leave to amend. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) 10

("A district court may deny a plaintiff leave to amend . . . if the plaintiff had several opportunities to amend its complaint and repeatedly failed to cure deficiencies.").

United States District Court

For the Northern District of California

IT IS SO ORDERED. 13 14


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