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Daniel Thomas Harvey v. City of South Lake Tahoe

August 9, 2011

DANIEL THOMAS HARVEY, PLAINTIFF,
v.
CITY OF SOUTH LAKE TAHOE; EL DORADO COUNTY; ANDREW EISSINGER; CHARLES DUKE, DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This action, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Presently before the court are (1) defendant El Dorado County's motion to dismiss plaintiff's first amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6), Dckt. No. 16, and (2) defendants City of South Lake Tahoe, Officer Andrew Eissinger, and Officer Charles Duke's motion to dismiss City of South Lake Tahoe from the action pursuant to Rule 12(b)(6), motion for a more definite statement pursuant to Rule 12(e), motion to strike portions of the amended complaint pursuant to Rule 12(f), and motion to dismiss the amended complaint pursuant to Rules 8(a) and 10(b), Dckt. No. 17. Plaintiff opposes the motions. Dckt. Nos. 21, 22. For the reasons stated herein, the undersigned recommends that the motions to dismiss be granted and that plaintiff be granted leave to amend some of his claims, as set forth below.

I. BACKGROUND

Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983 against El Dorado

County and against the City of South Lake Tahoe, South Lake Tahoe Police Officer Andrew Eissinger, and South Lake Tahoe Police Officer Charles Duke (collectively, "the City defendants"). First Am. Compl. ("FAC"), Dckt. No. 13. Plaintiff states that on March 19, 2010 he was bitten by a dog belonging to James Handley. Id. at 2.*fn1 Plaintiff alleges that when he informed Mr. Handley of the bite, Mr. Handley "engaged in flight." Id. Plaintiff, fearing that if he did not obtain the dog's vaccination information he would "have to undergo preventative rabies treatment," "acted using force" to stop Mr. Handley from leaving. Id. at 2-3. Officers Eissinger and Duke arrested plaintiff after arriving at the scene and interviewing witnesses. Id. at 4.

Plaintiff's complaint states that "[t]his case originated after a false arrest caused false imprisonment" and resulted in "excessive bail" and a violation of "plaintiff's 5th and 14th [a]mendment right[s] to due process." Id. at 1. More specifically, plaintiff alleges that although Officers Eissinger and Duke were aware of "much information" indicating that plaintiff "had the right to use force in detaining" the dog and its owner, they nevertheless falsely arrested him. Id. at 4. Plaintiff further alleges that his false arrest evolved into a false imprisonment because Officers Eissinger and Duke could have released plaintiff from custody under California Penal Code ("Penal Code") section 849(b)(1), which permits a peace officer to release a person from custody when the officer is satisfied that there are insufficient grounds for making a criminal complaint against the person, but they did not release him. Plaintiff alleges that the two police officers conspired to arrest, imprison, and bring false charges against him in violation of Penal Code section 182(a)(2). Plaintiff also claims that Officers Eissinger and Duke "aided and abetted the theft of [his] bicycle" because the officers "did not take control of the bicycle" after plaintiff was arrested and instead "[t]he bicycle was left at the scene to be stolen while [plaintiff] was in jail." Id. at 11. Plaintiff claims that Officer Eissinger obstructed justice in violation of 18 U.S.C. § 1503(a) by submitting a declaration to a judge which "omitted the fact that the dog owner had fled taking his dog away," "falsely indicated that [plaintiff] attacked the dog owner as soon as the dog owner came out of the store," and "falsely stated that [plaintiff] had walked away with [Mr. Handley's] skateboard." Id. at 10. Plaintiff contends that defendant City of South Lake Tahoe is "responsible for [not] properly training the police officers" and for not "deterring police misconduct" and they are therefore "accountable" to plaintiff. Id. at 13.

Plaintiff also seeks to hold El Dorado County liable for the conduct of certain El Dorado County jail employees. He claims that certain employees at the El Dorado County jail violated his Fourth Amendment rights because they "unconstitutionally extracted DNA" from him. Id. at 12. Additionally, plaintiff alleges that the El Dorado County jail employees acted to extract an "excessive bail" of $80,000 from him by holding him "in a cell that had bail bond information and a telephone [and] [a]t the same time [he] was not provided warm clothing or a bed or blanket." Id. at 13. Finally, plaintiff alleges that defendant El Dorado County is responsible for the jail employees allegedly denying him "his right to a bail hearing." Id. at 12. Plaintiff seeks compensatory damages. Id. at 14.

II. EL DORADO COUNTY'S MOTION TO DISMISS

Defendant El Dorado County moves to dismiss plaintiff's first amended complaint for

failure to state a claim pursuant to Rule 12(b)(6). Dckt. No. 16.

A. Legal Standards

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).

Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A pro se litigant is, however, entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

B. Discussion 1. Municipal Liability Against El Dorado County

Plaintiff alleges a § 1983 municipal liability claim against El Dorado County, arguing that (1) certain El Dorado County jail employees violated the Eighth Amendment by accepting excessive bail from him, by failing to provide plaintiff with warm clothing or a bed or blanket in "an effort to cause the posting of excessive bail," and by denying plaintiff a bail hearing; (2) the jail employees violated the Fourth Amendment by extracting plaintiff's DNA pursuant to Penal Code section "296, 2 (C)",*fn2 which plaintiff contends is unconstitutional; (3) the jail employees told a police officer to take plaintiff to a hospital instead of a low-cost clinic as a result of his dog-bite injuries; and (4) the El Dorado County District Court failed to provide plaintiff a bail hearing and caused excessive bail. FAC at 2, 5, 12-13. El Dorado County seeks dismissal of this municipal liability claim, arguing that plaintiff has failed to state a claim under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Dckt. No. 16. ////

Since there is no respondeat superior liability under § 1983, counties and municipalities may be sued under § 1983 only upon a showing that an official policy or custom caused the constitutional tort. See Monell, 436 U.S. at 691. In order to state a claim under Monell, a party must (1) identify the challenged policy or custom; (2) explain how the policy or custom is deficient; (3) explain how the policy or custom caused the plaintiff harm; and (4) reflect how the policy or custom amounted to deliberate indifference, i.e. show how the deficiency involved was obvious and the constitutional injury was likely to occur. Young v. City of Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009).

Defendant El Dorado County argues that plaintiff has failed to allege any policy or custom in his complaint. The undersigned agrees that plaintiff's municipal liability claim against El Dorado County lacks the specificity required under Iqbal and Twombly. Plaintiff has not identified any El Dorado County policy or custom in his first amended complaint, has not alleged that the jail employees acted pursuant to a County policy or custom, and has not alleged that their conduct conformed to an official policy or custom. See Monell, 436 U.S. at 690-91, 694; Karim-Panahi, 839 F.2d at 624; Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986). Additionally, because he has not identified any such policy or custom, he also has not explained how the policy or custom is deficient, has not explained how the policy or custom caused him harm, and has not explained how the policy or custom amounted to deliberate indifference. Accordingly, plaintiff has not alleged a basis for holding defendant El Dorado County liable for any constitutional deprivations in connection with his arrest, detention, or DNA extraction.*fn3

Therefore, his claims against defendant El Dorado County should be dismissed with leave to amend, to the extent that plaintiff can allege specific facts to support a Monell liability claim.*fn4

2. Plaintiff's Claims Against El Dorado County Superior Court El Dorado County also argues that it cannot be held liable for plaintiff's claims against the El Dorado ...


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