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Kathlyn A. Rhodes v. Placer County

March 31, 2011

KATHLYN A. RHODES, PLAINTIFF,
v.
PLACER COUNTY, ET AL., DEFENDANTS.



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

ORDER and FINDINGS & RECOMMENDATIONS

Presently before this court is a motion to dismiss ("MTD") and motion to strike ("MTS"), and in the alternative, a motion for a more definite statement, filed by defendant American Medical Response ("AMR" or "moving defendant"). (Dkt. Nos. 77-78.) Plaintiff Kathlyn Rhodes*fn1 opposed the motions with a written opposition and declaration. (Oppo., Dkt. Nos. 95-96.) AMR filed a written reply. (Reply, Dkt. No. 97.) The matter was submitted without oral argument pursuant to Eastern District Local Rule 230(g). (Dkt. No. 101.)

After plaintiff filed her second amended complaint (the "SAC"), three sets of defendants filed motions to dismiss and partially strike the SAC, and those motions are now pending before the court.*fn2 The motions filed by other defendants will be addressed in separate orders. This order addresses only the motions filed by AMR. (Dkt. No. 77)

After careful consideration of the pleadings on file, the record, and the papers filed in support of and in opposition to these motions, and as discussed below, the undersigned recommends that the motion to dismiss be granted in part and denied in part, that the motion to strike be granted in part and denied in part, and that the motion for a more definite statement be denied.

I. BACKGROUND

Plaintiff, a licensed attorney*fn3 appearing in pro se and in forma pauperis, filed this action on February 20, 2009. (Dkt. No. 1.) In general, plaintiff complains of alleged violations of her rights based upon events surrounding her arrest and subsequent treatment at a mental health facility. Following this court's screening of her original complaint under 28 U.S.C. § 1915, plaintiff filed a first amended complaint on May 20, 2009. (Dkt. No. 4.) Several defendants filed motions to dismiss that complaint. This court heard oral arguments on the motion to dismiss the first amended complaint on March 25, 2010. (Dkt. No. 60.) During that hearing, the undersigned warned plaintiff that, because she was a licensed member of the California Bar, she would not continue to receive the leniency typically given to pro se litigants. The undersigned directed plaintiff to very carefully review and amend her pleading to correct the various deficiencies noted in the motions to dismiss, including the need to plead specific factual allegations against each defendant for each claim. The undersigned gave plaintiff the example of the defamation/slander claim, and informed her that to properly state such a claim, she must: allege the statement(s) made; by whom; and identify who heard those alleged statements. The undersigned also emphasized that some of the statute of limitations arguments made in the motions to dismiss appeared "well-taken," and cautioned plaintiff that while she would be permitted the opportunity to amend the apparently time-barred claims, she would be held to the standards of an attorney and might therefore face sanctions for continuing to pursue claims that are, in fact, time-barred. The undersigned warned plaintiff that, as a member of the bar, she would be expected to omit claims that were time-barred unless she could make good faith arguments to the contrary. Finally, the undersigned instructed plaintiff that with respect to any claims with a claim presentation requirement (i.e., claims requiring compliance with the Government Claims Act), plaintiff would need to plead the dates she presented her claim(s) and attach the notice or claim to her pleading. (Id.)

After the hearing on March 25, 2010, the court dismissed the first amended complaint and gave plaintiff leave to file her SAC. (Dkt. No. 61.) The court ordered plaintiff to craft her SAC so as to distinguish between each defendant and his or her alleged actions, to state non-conclusory factual bases for claims, and to specifically set forth the notice provided to defendants for any claims requiring such notice or claim presentation. (Dkt. Nos. 60, 61 at 2-4.)

On April 27, 2010, plaintiff filed her SAC. (SAC, Dkt. No. 66.) Plaintiff's SAC sets forth fourteen separate claims for relief stemming from an allegedly improper search and arrest and subsequent confinement in a mental facility following her time as a guest at the Comfort Suites hotel in Rocklin, California. (Dkt. No. 66.) The SAC asserts claims against twenty-three separate defendants.*fn4

The SAC alleges that on November 20, 2007, three Rocklin police officers surrounded plaintiff in a public parking lot, performed a pat down of her body, interrogated her and ordered her to undergo a field sobriety test. (SAC ¶ 10.) Plaintiff alleges that this interaction occurred across the street from the Comfort Suites hotel in Rocklin, where she had rented Room 101. (Id.) Although plaintiff avers that she successfully complied with the police officers' requirements, she nonetheless was "forced to ride in the back of Rocklin Police Officer Davis' patrol car from the parking lot to the front door of Comfort Suites," and that she was injured by officer Davis during this process. (Id.) Plaintiff alleges that defendants Platina, Collins and others prepared a false police report claiming that defendant Yao told Officer Platina that plaintiff had been "praying to a light" and singing in the hotel lobby and was "acting crazy." (Id. ¶ 21.)

Later that same night, plaintiff contends that Officer Platina and another officer returned to the Comfort Suites, told the hotel clerk, defendant Yao, to unlock plaintiff's room, and thereafter searched plaintiff's hotel room and her other belongings without a warrant or exigent circumstances. (Id. ¶ 11.) Plaintiff contends that the officers also broke into her car trunk to perform a search. (Id. ¶ 13.) Plaintiff alleges that "Rocklin Police Officers Platina and/or Jantz, Davis and/or one or more 'Doe' Defendants 1-20 subsequently beat Plaintiff to the ground and rendered her unconscious, then transported Plaintiff in the back of Platina's patrol car to the Placer County Main Jail in Auburn during the night of November 20, 2007." (Id. ¶ 14.) Plaintiff also alleges that "Platina sexually assaulted Plaintiff in the back seat of his police vehicle." (Id.)

Plaintiff avers that she was assaulted and injured by a variety of persons including multiple entities, multiple individuals, and 80 unnamed Doe defendants with whom she came into contact on November 20 and 21, 2007. (Id. ¶ 16 ("Said Defendants refused to allow Plaintiff to make any telephone calls; refused to give Plaintiff food, water or medical treatment for her personal injuries inflicted by Defendants; interrogated Plaintiff against her consent; laughed at and ignored Plaintiff's multiple requests to call her boy friend [sic], a lawyer and/or a judge; told Plaintiff she was at Guantanamo Bay and that most of Plaintiff's family was dead; rendered Plaintiff unconscious and searched her body, stripped off Plaintiff's socks and two toe rings without her consent; and injected needles and foreign substances into Plaintiff's body without her consent."). The list of defendants against whom this list of allegations is targeted includes AMR and "Doe" defendants employed by AMR. (Id.)

Plaintiff alleges that on the night of November 21, 2007, she was transported via ambulance from the Placer County Main Jail to the Sacramento County Mental Health Treatment Center ("SCMHTC"). (Id. ¶ 18.) Specifically, plaintiff alleges that various defendants transported themselves on the night of November 21, 2007 (the night before Thanksgiving), via ambulance owned and/or operated by Defendant AMR to the Defendant SCMHTC. Plaintiff designates "DOES 61 and 62" as two Caucasian females, one the driver and the other the passenger in the front seat of the AMR ambulance. Plaintiff also designates "DOES 2, 3, 4, 25, 26, 27, 41-60 and/or 63-80["] as one female and two males who then intentionally beat Plaintiff to the ground a third time in the parking lot at SCMHTC, lied to personnel at SCMHTC, filed a false report to SCMHTC and caused Plaintiff to be falsely imprisoned and involuntarily confined for eight (8) days at SCMHTC. (Id.) Plaintiff designated Does 61-80 as "employed by or agents of Defendant AMR" (hereinafter the "AMR Does"). (Id. ¶ 5.)

Plaintiff alleges that AMR and the AMR Does, among other defendants, "injected syringes into eleven (11) areas on Plaintiff's hands and left inside forearm without a physician's order" and that she suffered emotional distress as a result. (Id. ¶ 46-47.) Plaintiff alleges that AMR and the AMR Does, among other defendants, "inject[ed] Plaintiff's body with needles and foreign substances without Plaintiff's consent," rendered her unconscious, and forced medications upon her, denied her food and water and failed to treat her injuries. (Id. ¶ 54(c).)

Plaintiff also alleges that AMR and the AMR Does, among other defendants, "inject[ed] Plaintiff's body with needles and foreign substances at the Main Jail in Auburn and/or in the AMR ambulance and at SCMHTC, without Plaintiff's consent, rendering Plaintiff unconscious . . . forc[ed] Plaintiff to ingest medications . . . fail[ed] to give Plaintiff any food or water" and "fail[ed] to treat" her injuries. (Id. ¶ 85.)

Plaintiff also alleges that AMR and the AMR Does, among other defendants, "falsely told plaintiff there had been a national disaster, that some of plaintiff's family members were dead, and that Plaintiff was being transported via ambulance to a 'safe place.'" (Id. ¶ 30(f).) Plaintiff alleges that AMR and the AMR Does-among multiple other named and Doe defendants-"threaten[ed] to bash Plaintiff's head into a wall," and denied her food, water, and medical care. (Id. ¶ 46.)

Plaintiff avers that "[a]s a proximate result of the police brutality, medical malpractice, torture and abuse by Platina, Jantz, Davis, Seipert, Hamilton, Bonner, CFMG, AMR, 'Doe' Defendants 1-80 and/or others, Plaintiff sustained severe personal and bodily injuries, including injuries to her head, neck, back, left nipple, both knees, left hip, right shoulder, both wrists, both legs and both feet." (Id. ¶ 22.)

Plaintiff alleges her "civil and constitutional rights" were violated by customs, policies, and official acts of numerous defendants, including AMR. (Id. ¶ 27(a).) Those customs and policies allegedly include a failure to train and supervise employees, resulting in "false imprisonments," among other things. (Id.) Plaintiff also alleges that AMR, CFMG, and Placer County had a "custom and practice" of "beating and use of excessive force during the arrest process." (Id. ¶ 27(c).)

Plaintiff alleges that Placer County and AMR "had a contract for ambulance services for arrestees" at the Placer County Main Jail in November, 2007." (Id. ¶ 27(c).) This alleged "oral contract" was to "split the fees generated by the arrest process." (Id.) Plaintiff also alleges that AMR and the AMR Does, among other named and Doe defendants, "confiscated" various items of plaintiff's personal property. (Id. ¶¶ 33, 40.)

II. LEGAL STANDARDS

AMR's motions are brought pursuant to Rules 12(b)(1), 12(b)(6), 12(e) and 12(f) of the Federal Rules of Civil Procedure.

A. Legal Standard For A Motion to Dismiss Under Rule 12(b)(1)

A motion brought pursuant to Rule 12(b)(1) is a challenge to the court's jurisdiction over the subject matter of the complaint. Federal courts are courts of limited jurisdiction. Vacek v. UPS, 447 F.3d 1248, 1250 (9th Cir. 2006). The plaintiff has the burden of establishing that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003).

B. Legal Standard For A Motion to Dismiss Under Rule 12(b)(6)

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 the 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). The complaint must give a defendant "fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and modification omitted).

On a motion to dismiss, the court construes the pleading in the light most favorable to the plaintiff and resolves all doubts in the plaintiff's favor.*fn5 Corrie v. Caterpiller, 503 F.3d 974, 977 (9th Cir. 2007); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The complaint's factual allegations are accepted as true. Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984). In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), however, a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). Factually unsupported claims framed as legal conclusions, and mere recitations of the legal elements of a claim, do not give rise to a cognizable claim for relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-51 (2009) (holding that Rule 8 "demands more than an unadorned, the defendant-unlawfully-harmed-me-accusation").

Iqbal and Twombly describe a two-step process for evaluation of motions to dismiss. The court first identifies the non-conclusory factual allegations, and the court then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiff, "plausibly give rise to an entitlement to relief." Iqbal, 129 S. Ct. at 1949-50.*fn6

"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). "'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).

"Plausibility," as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the non-conclusory factual allegations, when assumed to be true, "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557). A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Iqbal, 129 S. Ct. at 1951-52. While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully."

Id. at 1949; accord Twombly, 550 U.S. at 556. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

C. Legal Standard For A Motion To Strike Under Rule 12(f).

Rule 12(f) of the Federal Rules of Civil Procedure states that a district court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)). "Rule 12(f) does not authorize a district court to strike a claim for damages on the ground that such damages are precluded as a matter of law."

Id. at 971. Further, courts may not resolve disputed and substantial factual or legal issues in deciding a motion to strike. Id. at 973. "The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Id. Granting a motion to strike may be proper if it will make trial less complicated or eliminate serious risks of prejudice to the moving party, delay, or confusion of the issues. Fantasy, 984 F.2d at 1527-28; Travelers Cas. and Sur. Co. of America v. Dunmore, No. CIV. S-07-2493 LKK-DAD, 2010 WL 5200940, at *3 (E.D. Cal. Dec. 15, 2010) (unpublished) (same). Motions to strike are generally disfavored, and in determining whether to grant a motion to strike a district court resolves any doubt as to the sufficiency of a defense in the defendant's favor. E.g., Mag Instrument, Inc. v. JS Prods., Inc., 595 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008) (internal citations omitted).

D. Legal Standard For A Motion For A More Definite Statement; Rule 12(e).

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. Fed. R. Civ. P. 12(e). A Rule 12(e) motion is proper only if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted. Federal Sav. & Loan Ins. Corp. v. Musacchio, 695 F. Supp. 1053, 1060 (N.D. Cal. 1988); Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981). The court must deny the motion if the complaint is specific enough to apprise defendant of the substance of the claim being asserted. Bureerong v. Uyawas, 922 F. Supp. 1450, 1461 (C.D. Cal. 1996). The court should also deny the motion if the detail sought by a motion for more definite statement is obtainable through discovery. Beery v. Hitachi Home Electronics (America), Inc., 157 F.R.D. 477, 480 (C.D. Cal. 1993); accord Harvey v. City of Oakland, No. C07-01681 MJJ, 2007 WL 3035529, at *8 (N.D. Cal. Oct. 16, 2007) (not reported).

III. DISCUSSION

A. Motion to Dismiss

AMR's motion to dismiss seeks relief on two main grounds (Dkt. No. 78): (1) failure to state a claim under Rule 12(b)(6); and (2) lack of jurisdiction under Rule 12(b)(1).

1. Failure to State a Claim

AMR requests dismissal of thirteen causes of action against it for failure to state a claim. AMR's arguments with respect to the factual bases for these claims are addressed in turn below.

a. Statute of Limitations: Intentional Tort Claims Under State Law

The undersigned first addresses AMR's broad argument that all state law claims against it are time-barred. (MTD at 8-9.) AMR cites to California Code of Civil Procedure § 340.5 ("Section 340.5"), which potentially provides for a one year statute of limitation in actions against medical providers "based upon such person's alleged professional negligence. . . ." Cal. Code Civ. Proc. § 340.5. Yet, with the exception of the claim for "medical malpractice," the state law claims alleged against AMR do not sound in negligence, but are alleged intentional torts. Aware of this distinction, AMR cites the Central Pathology case and suggest that it can be interpreted to bring even intentional tort claims against medical providers within the one-year statute of limitations stated in Section 340.5. (MTD at 7-8 (citing Central Pathology Serv. Med. Clinic, Inc. v. Superior Court, 3 Cal. 4th 181, 192 (1992).) This argument is not well-taken.

The court in Central Pathology did not examine Section 340.5 or deal with statutes of limitation. Central Pathology, 3 Cal. 4th at 192. Instead, the court interpreted another statutory section (Cal. Civ. Code § 425.13 (punitive damages)). Id. The court construed the phrase "arising out of professional negligence" in that statutory section to include intentional torts, so long as the conduct giving rise to such damages is "directly related to the manner in which defendants provided professional services." Central Pathology, 3 Cal. 4th at 192. The court's conclusion was shaped by the specific statute in question-Civil Code § 425.13-and the need to read the section broadly in order to effectuate its purpose of limiting punitive damages suits against medical providers. Id. at 190-93 (recognizing the "Legislature's intent to protect health care providers from unsubstantiated punitive damage claims" and holding that "[t]he clear intent of the Legislature is that any claim for punitive damages in an action against a health care provider be subject to the statute if the injury that is the basis for the claim was caused by conduct that was directly related to the rendition of professional services.") Therefore, the court's decision in Central Pathology to lump together claims sounding in negligence together with claims sounding in tort is limited to the circumstances of that case.

Further, AMR has not cited a single case invoking Central Pathology's rationale for statute of limitations purposes in general, let alone using that rationale to treat tort claims akin to negligence claims under Section 340.5 in particular. Absent more specific direction from the case law, the undersigned cannot find that Central Pathology effectively expands Section 340.5 to shorten the statutes of limitation for intentional tort claims alleged against medical providers. Accordingly, at this posture the undersigned cannot find that plaintiff's state law tort claims are time-barred under Section 340.5 as a matter of law.

b. First Claim for "Violation of Federal Civil and Constitutional Rights"

i) Claims Under The U.S. Constitution

AMR summarily argues that, as a matter of law, it cannot be liable for violations of the U.S. Constitution because it is a "private entity" and not a "state actor." (MTD at 3.) AMR's argument cites no supporting authority.

Normally, private parties, including corporations, are not acting under color of state law, and as such, no cause of action under Section 1983 is available. Price v. Hawaii, 707-08 (9th Cir. 1991). Corporations are generally not acting under color of state law and alleged violations of the Constitution by a corporation does not provide a plaintiff with a private cause of action against the corporation. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924 (1982). The only way to proceed with an action against a corporation for alleged violations of the Constitution is to show that the corporation's actions were fairly attributable to the federal or state government. Lugar, 457 U.S. at 936; Mathis v. Pacific Gas and Elec. Co., 75 F.3d 498, 502 (9th Cir. 1996).

However, private entities can be liable for constitutional violations under certain circumstances. E.g., Fonda v. Gray, 707 F.2d 435, 437-38 (9th Cir. 1983)*fn7 ; Lopez v. Dept. of Health Services, 939 F.2d 881, 883 (9th Cir. 1991) (citing cases and describing the "joint action test" and the "governmental nexus test".) For instance, in the Lopez case, the Ninth Circuit found that state action was sufficiently alleged by a complaint stating that the defendant hospital was under contract with the State of Arizona to provide medical services to indigents. Lopez, 939 F.2d at 883. In the West case, the Supreme Court held that "a private physician under contract with a state to provide medical services to inmates [is] a state actor for purposes of section 1983." West v. Atkins, 487 U.S. 42, 54 (1988).

AMR does not discuss these authorities or others involving private medical providers under contract with state actors. AMR does not describe ways that the SAC's allegations might fall short of meeting the circumstances required for a private entity to be treated as a state actor. Here, the SAC alleges that AMR operated under contract with Placer County, a state actor (SAC ¶ 27(c)), and AMR does not address this allegation or its impact on the issue of AMR's Section 1983 liability. AMR has not shown that, as a matter of law, AMR cannot be liable for the constitutional violations alleged in the SAC's first claim for relief such that the claim warrants dismissal at this posture. Accordingly, the motion to dismiss the first claim for violations of the U.S. Constitution is denied.

ii) Claims Under Federal Statutes 42 U.S.C. § 1981

AMR argues that the "specific function" of 42 U.S.C. § 1981 ("Section 1981") is to protect the "equal right of 'all persons within the jurisdiction of the United States' to 'make and enforce contracts' without respect to race." (MTD at 3-4 (quoting Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 475 (2006). AMR argues that plaintiff's Section 1981 claim must identify an impaired "contractual relationship" under which plaintiff has rights. (Id.)

A plain reading of Section 1981 reveals that it applies outside the strict context of "make[ing] and enforce[ing] contracts"-it also protects the right to "sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . ." 42 U.S.C. § 1981.

While Section 1981 may be read to embrace other rights aside from "making and enforcing contracts," more central here is the U.S. Supreme Court's clarification that Section 1981 protects against discrimination based on race. See Domino's Pizza, Inc, 546 U.S. at 474-75 (holding that Section 1981 protects the equal right of all persons "without respect to race"); Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1123 (9th Cir. 2008) (holding that Section 1981 "creates a cause of action only for those discriminated against on account of their race or ethnicity"); White v. Wash. Pub. Power Supply Sys., 692 F.2d 1286, 1290 (9th Cir. 1982) (holding that it is "well settled that section 1981 only redresses discrimination based on plaintiff's race"); Longariello v. Phoenix Union High School Dist., No. CV-09-1606-PHX-LOA, 2009 WL 4827014, at *5 (D. Ariz. Dec. 15, 2009) (not reported) (granting motion to dismiss Section 1981 claim because complaint did not allege that the plaintiff was a member of a racial minority).

Plaintiff has not alleged that any of the events and injuries described in her SAC were the result of her race, nor does she plead her race or ethnicity. (E.g., SAC ¶ 1.) Accordingly, AMR's motion to dismiss is granted with respect to the claim for violation of 42 U.S.C. § 1981. Because plaintiff has had multiple opportunities to amend her pleading and has never intimated that any of the alleged events were the result of racial discrimination, the undersigned recommends that the claim be dismissed with prejudice as against AMR.

42 U.S.C. §§ 1985 and 1986

AMR summarily argues that, as a matter of law, it cannot be liable for violations of 42 U.S.C. § 1985 ("Section 1985") because the SAC does not allege a "meeting of the minds" between a private entity and state actor. (MTD at 4 (citing Fonda v. Gray, 707 F.2d 435, 437-38 (C.A. Cal. 1983).) AMR is correct that, to prove a conspiracy between a private party and the government under Sections 1983 and 1985, the plaintiff must show an agreement or "meeting of the minds" by the defendants to violate her constitutional rights. Caldeira v. County of Kauai, 866 F.2d 1175, 1181 (9th Cir. 1989) (citing Fonda). AMR is incorrect that "the SAC makes no such allegations as to AMR."

After alleging that AMR and other defendants "conspired among themselves" to injure her on account of her "religion, including silent prayer," (SAC ¶ 26(e)), a liberal reading of the SAC suggests that this "conspiracy" was partially expressed in the form of an "oral, illegal contract" between AMR and several other defendants "to split the fees generated by the arrest process." (SAC ¶ 27(c).) While these odd allegations may not be sufficient to plead the bases for a conspiracy, AMR has not cited authorities on the issue or attempted to make such a showing. As noted above, AMR fails to address the impact of allegations that it was operating pursuant to a "contract" with Placer County when plaintiff's injuries allegedly occurred. Accordingly, the undersigned cannot conclude that the Section 1985 claim is deficient as a matter of law warranting dismissal at the pleading stage. Likewise, because AMR argues only that the claim for violation of 42 U.S.C. § 1986 ("Section 1986") fails because the Section 1985 claim fails (MTD at 4), AMR has not shown that the Section 1986 claim warrants dismissal at this time. Therefore, the motion to dismiss is denied with respect to the claims for violation of both sections.

18 U.S.C. § 245

District courts have clarified that "18 U.S.C. § 245 is a criminal statute and does not grant the plaintiff a private right of action." Cooley v. Keisling, 45 F. Supp. 2d 818, 820 (D. Or. 1999); e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Accordingly, as to any alleged violation of 18 U.S.C. § 245, the motion to dismiss is granted. Because amendment would be futile with respect to this claim, the undersigned recommends that the claim for violation of 18 U.S.C. § 245 be dismissed with prejudice against AMR.

c. Second Claim for "Violation of California Civil and Constitutional Rights"

i) Failure to Plead Supporting Facts

AMR argues that the SAC fails to "set forth a cognizable claim" as to the "litany of constitutional and statutory references" in plaintiff's second claim. The entirety of AMR's argument is that: "First, most of the statutes set forth under this heading cannot form the basis for a private right of action. Second, none of the facts alleged as to AMR violate any of these provisions." (MTD at 4.) AMR cites not a single case or statute in support of these assertions.

Absent citations to authority showing that, as a matter of law, each alleged statutory violation "cannot form the basis for a private right of action," (regardless of AMR's view of what "most of" those statutes provide) the undersigned cannot dismiss any element of plaintiff's second claim. (Id.) AMR essentially asks the undersigned to take it at its word that "none of the facts alleged as to AMR violate any of these provisions." (Id.) Again, while AMR's arguments might have merit, by writing two ...


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