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Jody Lynn Von Haar v. City of Mountain View

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 ...


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