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Daniel Thomas Harvey v. City of South Lake Tahoe; El Dorado County; andrew Eissinger; Charles Duke

April 12, 2012



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 second amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6), Dckt. No. 40, and (2) defendants City of South Lake Tahoe, Officer Andrew Eissinger, and Officer Charles Duke's motion to dismiss the second amended complaint pursuant to Rules 8(a), 10(b), and 12(b)(6), Dckt. No. 39. Plaintiff opposes the motions. Dckt. Nos. 43, 44.

For the reasons stated herein, it is recommended that the motions to dismiss be granted but that plaintiff be granted leave to amend some of his claims, as set forth below.*fn1


In September 2011, plaintiff's first amended complaint was dismissed with leave to amend some of his claims. Dckt. No. 35; see also Dckt. No. 33 at 18. Specifically, plaintiff's claims against El Dorado Superior Court and his claims for violation of California Penal Code sections 182, 484, and 849(b)(1) and 18 U.S.C. § 1503 were dismissed without leave to amend; all other claims were dismissed with leave to amend. Id.

Thereafter, plaintiff filed a second amended complaint, alleging claims under 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"). Second Am. Compl. ("SAC"), Dckt. No. 38. Plaintiff alleges that on March 18, 2010, he was bitten by a dog belonging to James Handley, and when he informed Mr. Handley of the bite, Mr. Handley "took his dog by leash and fled." Id. at 3. Plaintiff contends that because he feared that if he did not obtain the dog's vaccination information he would "need to undergo preventative rabies treatment," he "used his bicycle and pushed Mr. Handley off of his skateboard" to stop Mr. Handley from leaving. Id. at 5. Officers Eissinger and Duke arrested plaintiff after arriving at the scene and interviewing witnesses. Id. at 5-6.

Plaintiff's second amended complaint alleges that "[t]he case originated from a false arrest after a minor dog bite incident" and resulted in "excessive bail" and a violation of "plaintiff's 5th and 14th amendment right[s] to due process." Id. at 1. More specifically, plaintiff alleges that Officers Eissinger and Duke "agreed to frame the plaintiff and perpetrated a false arrest." Id. Plaintiff claims that Officer Eissinger violated his right to due process by bringing "his false statements to the court [violating] plaintiff's 8th amendment right . . . and caused excessive bail." Id. at 2. Specifically, plaintiff contends Officer Eissinger "falsely omitted the flight of the dog owner" even though he "understood [plaintiff] had not committed robbery [but] simply lied saying 'Suspect later carried the skateboard away.'" Id. at 7. Plaintiff alleges that defendant City of South Lake Tahoe is "responsible for training and supervising its police officers," "does not discipline police officers whom demonstrate misconduct," and have a "policy of arresting innocent men and bringing false charges against them." Id. at 11-12. Furthermore, plaintiff claims that the City of South Lake Tahoe "hires a majority of its police officers from the State of Nevada" and these officers "hold no personal interest in maintaining the rights of the citizens of South Lake Tahoe California." Id. at 10. Plaintiff continues that because of the out of state hiring, "police officers are indifferent towards the rights of men whom live in South Lake Tahoe[, and] act without conducting a proper investigation [and] without considering that the women are lying." Id. at 10, 11. Plaintiff attempts to prove this indifference by describing three incidents where "women lie, and then their lies are used [by police] to frame [plaintiff]." Id. at 2.

In his second amended complaint, plaintiff also seeks to hold El Dorado County liable for the conduct of certain El Dorado County jail employees. He claims that those employees acted to extract an "excessive bail" of $80,000 from plaintiff by holding him "in a cold holding cell without adequate clothing, but while at the same time being provided bail bond information." Id. at 14. Plaintiff further claims that the "jail employees learned of the plaintiff's ability to post a larger bond then increased the bond" while acting "in alliance with the police officers." Id. Finally, plaintiff alleges that the jail employees denied him "his right to a bail hearing." Id.


Defendant El Dorado County moves to dismiss plaintiff's second amended complaint for failure to state a claim pursuant to Rule 12(b)(6). Dckt. No. 40.

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 certain El Dorado County jail employees violated plaintiff's Eighth Amendment rights by acting in alliance with police officers to extract an excessive bail from plaintiff and by denying plaintiff a bail hearing. SAC at 14. El Dorado County seeks dismissal of plaintiff's 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), since he has failed to allege any policy or custom by the County in his second amended complaint. Dckt. No. 40 at 8.

There is no respondeat superior liability under § 1983. Therefore, 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 ...

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