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Monte L. Low v. the City of Sacramento; Police Chief Rick Braziel; Capt. Scott

July 15, 2011

MONTE L. LOW, PLAINTIFF,
v.
THE CITY OF SACRAMENTO; POLICE CHIEF RICK BRAZIEL; CAPT. SCOTT LACOSSE; LT. NEIL SCHNEIDER; OFFICER KHANG BADGE #240; AND KHANG'S OFFICER/PARTNER ON THE EVENING OF 01/11/2008, DEFENDANTS.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

Presently before the court is a motion to dismiss and strike plaintiff's Third Amended Complaint, which was filed by the following defendants: the City of Sacramento ("City"), Rick Braziel, Scott LaCosse, Neil Schneider, and "Officer Khang."*fn1 (Mot. to Dismiss & Strike, Dkt. No. 18.) Because oral argument would not materially aid the resolution of the pending motion, this matter was submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has considered the briefs and the appropriate portions of the record in this case and, for the reasons stated below: (1) denies defendants' request for judicial notice as moot, and (2) recommends that defendants' motion be granted, and (3) that plaintiff's Third Amended Complaint be dismissed with prejudice.

I. BACKGROUND

A. Plaintiff's Third Amended Complaint

Plaintiff's Third Amended Complaint alleges violations of 42 U.S.C. §§ 1983 and 1985(2). (See Third Am. Compl., Dkt. No. 15.) Generally, plaintiff's claims arise from his arrest for public intoxication on January 11, 2008, an off-duty officer's alleged physical assault of plaintiff during the arrest, and plaintiff's detention in the Sacramento County jail thereafter. (See id. at 3, 6-20.) Plaintiff alleges that he is a resident of Sacramento, California. (Id. ¶ 2.) He further alleges that "defendants, with the exception of the City of Sacramento and the off-duty police officer (attacker), are or were employed by the City of Sacramento on the date of January 11, 2008, and work or worked for the City of Sacramento Police Department." (Id. ¶ 3.)

Plaintiff alleges that on or about January 11, 2008, he was "attacked, and severely beaten by a man at or near 7465 Rush River Drive, Sacramento, California." (Third Am. Compl. ¶ 6.) Plaintiff further alleges that "the attacker without warning pushed [plaintiff] through the door of the Mountain Mike's Pizza restaurant . . . and tried to stomp plaintiff's head into the ground." (Id.) In somewhat of a contradictory allegation, plaintiff alleges that he bounced off of the door and landed on his head and back, at which time the alleged attacker attempted to stomp his right foot downward toward plaintiff's head. (Id. ¶ 7.) Plaintiff alleges that during the attack, the "attacker yelled, 'I'm an off-duty police officer!'" (Id.)

Plaintiff alleges that he deflected the assailant's foot, sprang to his feet, and then ran to a nearby supermarket "to avoid further violence and to summon aid." (Third Am. Compl. ¶ 8.) He further alleges that two Sacramento City Police Department officers arrived at the supermarket.*fn2 (Id. ¶ 10.) Plaintiff further alleges that although he was "severely injured in the attack, the Sacramento City Police Officers refused to take a complaint from the plaintiff, refused to examine or document his injuries, refused to let him identify his attacker, handcuffed him without explanation, did not read him his rights, and did not tell plaintiff where he was being taken." (Id. ¶ 11.) The responding officers allegedly asked plaintiff three questions: "How much have you had to drink? Have you taken any drugs? Have you used any inhalants?" (Id. ¶ 12.) Plaintiff allegedly responded that he had consumed six beers between 1:00 p.m. and 8:00 p.m. that day, and he told Officer Kang that "he does not use drugs or inhalants."*fn3 (Id.) Plaintiff alleges that he was not given a "sobriety test," but later found out that "he was accused of using (huffing) a substance known as toluene."*fn4 (Id. & Exs. G, J.)

Plaintiff alleges that he was frightened by the officers' actions and believed that the officers were "conspiring to cover up the attempt on his life." (Third Am. Compl. ¶ 13.) He alleges that while he was being loaded into the police car, he asked: "Are you going to finish the job?" (Id.) He further alleges that having received no response to his query, he asked but received no response to the following question: "Are you going to kill me?" (Id.) Plaintiff alleges that while he was in the police car, he "raised his voice and said, 'Great, I'm going to be killed by the police!" (Id. ¶ 14.) Plaintiff alleges that Officer Khang stated that plaintiff had "screamed that he wanted to be killed by a police officer."*fn5 (Id.) Plaintiff disputes that he stated as much. (Id.)

Plaintiff alleges that he was thereafter taken to the "Sacramento County Jail," and that he was given a tuberculosis test and was questioned about "health issues" by a nurse at the jail. (Third Am. Compl. ¶¶ 16-17.) He alleges that although he told the nurse that he was attacked by an off-duty police officer, the nurse "did not note the attack" on the Sacramento Sheriff's Department Receiving Screening Form, did not examine plaintiff's injuries, and did not note plaintiff's injuries on the form. (Id. ¶ 17.) Plaintiff alleges that a Sacramento Police Officer forged plaintiff's signature on the Sacramento Sheriff's Department Receiving Screening Form. (Id. ¶ 18 & Ex. A.)

Plaintiff 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" despite having been given no sobriety test.*fn6 (Third Am. Compl. ¶ 21.) He alleges that he was denied medical attention in order to "hide" the attack by the off-duty officer and to prevent plaintiff from documenting his blood-alcohol content. (See id.)

On January 15, 2008, plaintiff allegedly attempted to file a complaint at the "station for the City of Sacramento Police," but the "police refused to file the complaint for the attack, and indicated that they had completed their investigation, without ever taking a statement from plaintiff." (Third Am. Compl. ¶ 22.) Plaintiff alleges that "the defendants refused to provide [him] with any information regarding his attacker, so the identity of this man remains unknown to him to this day." (Id.)

Plaintiff asserts that "the actions of the defendants were intentionally undertaken to prevent him from discovering the identity of the off-duty police officer that attacked him, to punish [him] for making a complaint against the officer, and to deny [him] access to justice for the crimes committed against him." (Third Am. Compl. ¶ 23.) Plaintiff alleges that he has:

(1) suffered physical pain and suffering as a result of the denial of medical treatment for his injuries; (2) suffered mental pain and suffering as a result of the initial attack and the "subsequent 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. ¶ 25.) Specifically as to the latter alleged injury, plaintiff alleges that in September 2008, plaintiff was sent a letter from the California Department of Corrections and Rehabilitation ("CDCR") informing plaintiff that he would no longer be considered for positions he had applied for because of allegations-provided by the Sacramento Police Department to CDCR-of inhalant usage and of what plaintiff screamed in the restaurant during the incident on January 11, 2008. (See id. ¶ 24; see also id., Ex. G (letter dated September 11, 2008, notifying plaintiff of the removal of his name from the eligibility list for positions as a "Youth Correctional Counselor/Youth Correctional Officer/Correction Officer").

Through his Third Amended Complaint, plaintiff seeks recovery for constitutional violations pursuant to 42 U.S.C. §§ 1983 and 1985. With respect to the alleged constitutional violations at issue, plaintiff alleges that: (1) his right to petition for the redress of grievances secured by the First and Fourteenth Amendments to the United States Constitution were violated as a result of retaliation by law enforcement personnel following plaintiff's complaints; (2) his Fourth Amendment rights to be free of unreasonable searches and seizures were violated by an false arrest and unlawful detention; (3) his Fourteenth Amendment due process or equal protection rights were violated because he-as a "class of one"-was treated differently than his arresting officers; and (4) his Eight Amendment rights were violated by the imposition of cruel and unusual punishment in the form of "psychological torture" and the deliberate denial of medical needs at the jail. (See Third Am. Compl. ¶¶ 27-30, 34.)

B. Procedural History

Plaintiff filed his original complaint in California Superior Court, County of Sacramento ("Superior Court"), on July 8, 2009, alleging that the City was liable for intentional torts and general negligence. (Compl., attached as an exhibit to the Notice of Removal, 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 the City pursuant to 42 U.S.C. § 1983. (First Am. Compl., attached as an exhibit to the Notice of Removal, Dkt. No. 2 at 11-15.)

On May 14, 2010, plaintiff filed a Second Amended Complaint in the Superior Court, which sought recovery against the City for violations of 42 U.S.C. § 1983. (Second Am. Compl., attached as an exhibit to the Notice of Removal, Dkt. No. 2 at 5-9.) As with plaintiff's prior pleadings, the Second Amended Complaint did not name any individuals as defendants. On June 25, 2010, defendant removed plaintiff's action to federal court pursuant to 28 U.S.C. § 1441(b). (Notice of Removal, Dkt. No. 1.)

Defendant subsequently filed a motion to dismiss and/or strike plaintiff's Second Amended Complaint. (Dkt. No. 5.) The undersigned granted the City's motion to dismiss and dismissed the Second Amended Complaint without prejudice. (Order, Sept. 17, 2010, Dkt. No. 14.) The court concluded that plaintiff had failed to allege that the City had a policy, custom, or practice that would substantiate a claim for damages against the City consistent with Monell v. Department of Social Services, 436 U.S. 658 (1978), and its progeny. Plaintiff was granted leave to amend his complaint.

On October 14, 2010, plaintiff filed his Third Amended Complaint. Particularly relevant to defendants' motions is that the Third Amended Complaint named, for the first time, individual defendants, and added a new claim alleging a violation of plaintiff's Eighth Amendment rights. Plaintiff's three prior complaints did not name any individual defendants.

II. LEGAL STANDARDS

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), cert. denied, 130 S. Ct. 1053 (2010). "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 of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). 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. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved"). 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 claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when the running of the statute is apparent on the face of the complaint." Von Saher v. Norton Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (citation and internal quotation marks omitted). A court may, however, consider judicially noticeable documents in assessing the running of the statute of limitations. See Diaz v. Carlson, 5 F. Supp. 2d 809, 815 (C.D. Cal. 1997), aff'd, 142 F.3d 443 (9th Cir. 1998); Hernandez v. Sutter W. Capital, No. C 09-03658 CRB, 2010 WL 3385046, at *2 (N.D. Cal. Aug. 26, 2010) (unpublished).

Federal Rule of Civil Procedure 12(f) provides that a district court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983); accord Amaral v. Wachovia Mortgage Corp., 692 F. Supp. 2d 1226, 1230 (E.D. Cal. 2010). Motions to strike are generally disfavored, and this court has previously stated that a motion to strike brought pursuant to Rule 12(f) "should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." ...


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