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Timothy Lewis Whiting v. County of Riverside

March 6, 2012

TIMOTHY LEWIS WHITING,
PLAINTIFF,
v.
COUNTY OF RIVERSIDE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: United States Magistrate Judge Carla M. Woehrle

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

The pro se plaintiff seeks to proceed in forma pauperis. His Complaint was lodged on October 5, 2011, and was filed on October 14, 2011 (as docket no. 3), pursuant to the court's Order re Leave to File Action Without Prepayment of Filing Fee (docket no. 2). Plaintiff seeks monetary damages for federal civil rights violations and state torts. [Complaint ("Cpt.") p. 2.] For reasons stated below, the Complaint is dismissed with leave to amend.

I. STANDARD OF REVIEW

Complaints such as Plaintiff's are subject to the court's sua sponte review under provisions of the Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). See 28 U.S.C. § 1915A(a). The court shall dismiss such a complaint, at any time, if the court finds that it (1) is frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(in forma pauperis complaints); Lopez v. Smith, 203 F.3d 1122, 1126-27 and n.7 (9th Cir. 2000)(en banc).

PLRA review for failure to state a claim applies the standard applied in reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)

(6). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a claim for relief. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "In deciding such a motion, all material allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them." Id. "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, 534 F.3d 1116, 1121 (9th Cir. 2008)(quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A complaint may also be dismissed for failure to state a claim if it discloses some fact or complete defense that will necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984)(citing 2A Moore's Federal Practice ¶12.08).

Possible failure to state a claim is reviewed in light of the pleading standard of Fed. R. Civ. P. 8(a)(2), which requires that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court has explained the pleading requirements of Rule 8(a)(2) and the requirements for surviving a Rule 12(b)(6) motion to dismiss in Ashcroft v. Iqbal ("Iqbal"), 556 U.S. 662, , 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)(per curiam), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); see also Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009).

The Rule 8 pleading standard does not require "detailed factual allegations." Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic, 550 U.S. at 555); see also Erickson, 551 U.S. at 93; Moss,, 572 F.3d at 968. However, a complaint does not meet the pleading standard if it contains merely "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic, 550 U.S. at 555).

Instead, to comply with the requirements of Rule 8(a)(2) and survive a motion to dismiss under Rule 12(b)(6), "a complaint 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 (quoting Bell Atlantic, 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." Iqbal, 129 S. Ct. at 1949 (citing Bell Atlantic, 550 U.S. at 556). This plausibility standard is not a probability requirement, but does ask for more than mere possibility; if a complaint pleads facts "merely consistent with" a theory of liability, it falls short of "the line between possibility and plausibility." Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic, 550 U.S. at 557).*fn1

The Supreme Court has set out a two-pronged approach for reviewing possible failure to state a claim. Iqbal, 129 S. Ct. at 1949-50; see also Moss, 572 F.3d at 969-70. First, the reviewing court may identify statements in a complaint that are actually conclusions, even if presented as factual allegations. Iqbal, 129 S. Ct. at 1949-50. Such conclusory statements (unlike factual allegations) are not entitled to a presumption of truth. Id. Here, it is the conclusory nature of the statements (rather than any fanciful or nonsensical nature) "that disentitles them to the presumption of truth." Id. at 1951. Second, the court presumes the truth of any remaining "well-pleaded factual allegations," and determines whether these allegations and reasonable inferences from them plausibly support a claim for relief. Id. at 1950; see also Moss, 572 F.3d at 969-70.

If the court finds that a complaint should be dismissed for

failure to state a claim, the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000)(en banc). Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). If, however, it is clear after careful consideration that a complaint's deficiencies cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1107-11; see also Moss, 572 F.3d at 972.

II. PLAINTIFF'S CLAIMS AND ALLEGATIONS

Plaintiff seeks monetary damages on federal civil rights claims under 42 U.S.C. § 1983 for First Amendment retaliation, Fourth Amendment unreasonable seizure and excessive force, and Fourteenth Amendment due process and equal protection violations, as well as on state law claims. [Complaint ("Cpt.") generally.]*fn2 Plaintiff also asserts claims, under 42 U.S.C. § 1983, for "Supervisory Liability" and "Municipal Liability." [Id.] However, as discussed below, these are not separate legal claims or causes of action, but simply theories of liability on how a supervisor or a municipality may be held liable for a specific constitutional violation, such as First Amendment retaliation or excessive force, actually committed by a subordinate or an employee.

Plaintiff names as defendants Riverside County and eleven individual capacity defendants identified as officers of the Riverside County Sheriff's Department ("RCSD"), namely County Sheriff Sniff, eight officers of RCSD's Palm Desert Station, and two officers of the Indio Station. [Cpt. pp. 1-4.] The eight defendants identified as Palm Desert officers are Captain Wilham, Sergeant Elders, Sergeant Horkel, Deputy Gelinas, Deputy Cleary, Deputy Chaney, Sergeant Covington, and Deputy Robertson. [Id.] The two Indio officers are Captain Raymond Gregory and Deputy Adams. [Id.]

Plaintiff makes specific allegations with respect to three incidents on July 22, 2009, October 5, 2009, and August 28, 2010. [Cpt. generally.]

A. THE FIRST INCIDENT (JULY 22, 2009)

Plaintiff alleges that, on July 22, 2009, at about 8:15 a.m., he was riding his bicycle to work as a temporary day laborer through the Labor Ready agency. [Cpt. at 6.] Plaintiff was not doing anything suspicious. [Cpt. at 6-7.] A Palm Desert Sheriff's Department vehicle, with siren on and lights flashing, pulled Plaintiff over near the Labor Ready agency. [Cpt. at 7.] A sheriff's deputy, later identified as Defendant Chaney, exited the vehicle and approached Plaintiff. Plaintiff asked Chaney, "Why am I being stopped." Chaney said, "I just want to talk to you." Plaintiff responded, "I do not want to talk to you." Chaney asked, "Are you on parole or probation?" Plaintiff said, "No." Plaintiff further stated that he knew what the stop was about, namely police misconduct complaints Plaintiff had filed against various officers. Chaney said, "I do not know who you are." Plaintiff asked, "Am I under arrest, if not then I should be free to walk away." Chaney asked where Plaintiff was coming from, and Plaintiff said from a friend's house. [Id.]

Plaintiff stated that this was racial profiling. [Cpt. at 7.] Chaney continued to say, "I just want to talk to you. What is your name." Plaintiff asked Chaney whether Plaintiff could retrieve his cell phone to call the FBI in Los Angeles, and Chaney agreed. [Id.] At about 8:39 a.m., Plaintiff got an FBI agent on the phone, and told him that a sheriff's deputy had stopped him for no reason and was violating his civil rights. [Cpt. at 8.] The FBI agent agreed to remain on the phone and listen in during the following interchange. [Id.]

Chaney called for back up, and a few minutes later Defendants Sergeant Covington and Deputy Robertson arrived. [Cpt. at 8.] Covington and Robertson exited their vehicle and walked over to Plaintiff. Plaintiff told and spelled his name to the FBI agent in a loud voice. Chaney, with his right hand on his gun, approached the other two and told Covington that Plaintiff was speaking with an FBI agent. [Id.] Chaney then came behind Plaintiff. [Cpt. at 9.] Plaintiff continued telling the FBI agent what was happening. Plaintiff asserts that Chaney knew Plaintiff's identity and was intimidating and harassing him on behalf of the officers Plaintiff had complained about. Plaintiff then walked away, pushing his bicycle, while Chaney continued repeating, "What's your name?" [Id.]

Plaintiff ignored this, and entered the Labor Ready office, and spoke with the assistant manager, Tina, who noticed that a Sheriff's Department vehicle had stopped in front of the office. [Cpt. at 9.] Plaintiff told Tina that the deputies had harassed him in hopes that the management would not dispatch him for work, thereby preventing him from gaining employment. [Cpt. at 9-10.]

B. THE SECOND INCIDENT (OCTOBER 5, 2009)

On October 5, 2009, at about 2:00 a.m., Plaintiff walked onto the property of the Agua Caliente Casino, which Plaintiff had visited for some years. [Cpt. at 10.] Plaintiff saw a police vehicle in the parking lot, with two officers inside and its lights pointed toward him. He also saw one Casino security guard on a bike, and another sitting in a security vehicle. Plaintiff understood that this might be an instance of harassment and intimidation on behalf of the officers about whom Plaintiff had complained, and moved toward the main doorway to the Casino so as to be covered by the Casino surveillance cameras. [Id.]

As Plaintiff moved toward the doorway, the police vehicle moved in his direction, and an officer, later identified as Defendant Gelinas, jumped out and yelled, "Can we talk to you?" [Cpt. at 11.] Plaintiff said "No," and turned around and continued walking to the doorway. When Plaintiff reached the doorway and noticed that both police officers had exited their vehicle, he stopped. As the officers approached, Gelinas again said, "Can we talk to you," and Plaintiff again said, "No." Gelinas asked, "Do you have any ID?" and Plaintiff said, "No." Plaintiff then asked, "Why am I being detained?" Gelinas said, "There are many drug dealers in this area. I have conducted checks on other people as well." Plaintiff said, "I am not a drug dealer." Gelinas said, "How do we know that since we do not know who you are," and again asked for Plaintiff's ID. Plaintiff again said that he did not have any. [Id.]

Plaintiff then asked Gelinas, "Am I under arrest, if not I should be free to walk away." Gelinas said, "No, but we can stop and ask you for ID." [Cpt. at 11.] Plaintiff told the officer that the reason he was being detained was that he had filed misconduct complaints against over fourteen police officers and "one of your co-workers, a deputy sheriff," and went on to say, "You know who I am and this is BS." Gelinas asked Plaintiff for the name of the deputy, and Plaintiff identified Defendant Chaney. Gelinas then stated that he was an officer of the Rancho Mirage Police Department, not a sheriff's deputy. Plaintiff believed that Gelinas was lying. [Id.]

Gelinas then asked again for Plaintiff's ID, and Plaintiff again said that he did not have any. [Cpt. at 11.] Gelinas said, "How do we know there might not be a warrant for your arrest?" [Cpt. at 11-12.] Plaintiff said that the officers had the technology to check this on their vehicle computer. [Cpt. at 12.] Gelinas then apparently took a video picture of Plaintiff and stated that there was a warrant for his arrest. Plaintiff denied this. Gelinas then said, "How about this for technology," and drew his metal baton, and expanded it, making threatening ...


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