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William J. Whitsitt v. City of Tracy

May 24, 2012

WILLIAM J. WHITSITT, PLAINTIFF,
v.
CITY OF TRACY, ET AL., DEFENDANTS.



ORDER

This matter came before the court on May 11, 2012, for hearing on a motion brought on behalf of defendant Brett Hicks to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Attorney Richard Osman appeared for defendant Brent Hicks and plaintiff William Whitsitt appeared telephonically at the hearing on his own behalf. Oral argument was heard and the motion was taken under submission.

BACKGROUND

In his pro se complaint plaintiff alleges as follows. On or about June 5, 2009, plaintiff drove past defendant, Tracy Police Department Officer Brett Hicks, who was conducting a traffic stop of another motorist. (Compl. (Doc. No. 1) at 2.*fn1 ) Plaintiff made a left turn onto another street and noticed that Officer Hicks was now following him. (Id.) After about a quarter mile, Officer Hicks pulled plaintiff over and approached him. (Id.) Officer Hicks stated to plaintiff, "Mr. Whitsitt, do you know that you have [a] cracked windshield?" (Id.) Officer Hicks knew plaintiff's name before plaintiff provided him with identification. (Id.) Plaintiff asked Officer Hicks how he could have seen plaintiff's windshield, given that his rear window was very dirty and covered with dust. (Id.) Officer Hicks reiterated that plaintiff's windshield was cracked and defective and asked plaintiff for his identification, vehicle registration and proof of insurance. (Id.) Plaintiff handed Officer Hicks his identification and vehicle registration. (Id.) Officer Hicks then stated, "I see that you have [a] suspended driver's license." (Id.)

In response, plaintiff "showed him proof that a section 1983 action had just been filed against the City of Tracy, some fellow police officers and other named defendants" in the Northern District of California. (Id.) Officer Hicks looked at the document "with [a] great perplexed look in his face." (Id.) Plaintiff advised Officer Hicks, "That suit is valid and it is pending in the District Court. You do know this could be held as a form of retaliation." (Id.)

Officer Hicks then asked plaintiff to get out of his vehicle and told him to put his hands behind his back. (Id.) Officer Hicks proceed to handcuff plaintiff and told him that his vehicle was being towed. (Id.) During this time plaintiff repeatedly objected. (Id.) Plaintiff was released from Officer Hicks' custody after his vehicle was towed. (Id.)

On March 4, 2010, plaintiff filed the complaint in this action along with an application to proceed in forma pauperis. (Doc. Nos. 1-2.) On May 17, 2011, the undersigned granted plaintiff's request to proceed in forma pauperis and directed the United States Marshal to serve process on defendant Brett Hicks.*fn2 (Doc. No. 3.) On March 13, 2012, defendant filed the motion to dismiss now pending before the court.*fn3 (MTD (Doc. No. 17.)) After plaintiff was granted an extension of time, plaintiff filed opposition on April 25, 2012. (Pl.'s Opp'n. (Doc. No. 21.)) Defendant filed a reply on May 1, 2012. (Doc. No. 22.) On May 9, 2012, plaintiff filed an opposition to defendant's May 1, 2012 reply.*fn4 (Doc. No. 23.)

STANDARD

The purpose of a motion to dismiss pursuant to Rule 12(b)(6)*fn5 is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662,___, 129 S. Ct. 1937, 1949 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. See also Iqbal, 129 S. Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

In ruling on the motion, the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

ANALYSIS

I. Rule 8

The minimum requirements for a civil complaint in federal court are as follows: A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.

Fed. R. Civ. P. 8(a).

Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancements.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims. Jones, 733 F.2d at 649. A complaint must also contain "a short and plain statement of the grounds for the court's jurisdiction" and "a demand for the relief sought." Fed. R. Civ. P. 8(a)(1) & 8(a)(3).

Here, plaintiff's complaint does not contain a short and plaint statement of his claims showing that he is entitled to relief. Nor does the complaint state each cause of action separately and allege facts that satisfy the elements of each claim both plainly and succinctly. In this regard, plaintiff has filed a twenty-four page complaint along with a forty-page memorandum of point and authorities in support of that complaint. The memorandum of points and authorities rehashes allegations found in the complaint, resulting in a sixty-four page complaint with causes of action strewn about and repeated in multiple locations. Moreover, plaintiff's complaint frequently fails to clearly identify which claim is alleged against which defendant.*fn6

II. Fourth Amendment

Plaintiff's complaint alleges that Officer Hicks violated plaintiff's rights under the Fourth Amendments by stopping plaintiff's vehicle, arresting him and having his vehicle impounded, all without probable cause. (Compl. (Doc. No. 1) at 4.)

The Fourth Amendment, which applies to the states through the Fourteenth Amendment, protects against unreasonable searches and seizures by law enforcement officers. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Fourth Amendment requires law enforcement officers to have at least a reasonable suspicion of criminal activity before making a brief investigatory stop ("Terry stop"). See Terry v. Ohio, 392 U.S. 1, 9 (1968); United States v. Johnson, 581 F.3d 994, 999 (9th Cir. 2009) ("Police may detain or seize an individual for brief, investigatory purposes, provided the officers making the stop have reasonable suspicion that criminal activity may be afoot.") (citation and internal quotation marks omitted). During a Terry stop, "the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." Berkemer v. McCarty, 468 U.S. 420, 439 (1984).

Here, the complaint alleges that Officer Hicks "had no probable cause for the traffic stop whatsoever." (Compl. (Doc. No. 1) at 5.) Plaintiff argues that Officer Hicks "could not have ever seen my windshield, because my back window was very dirty and so where (sic) the side windows." (Id.) The complaint, ...


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