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Cd Alston v. Paul Tassone

June 21, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Plaintiff is proceeding pro se and in forma pauperis in this action, which was referred to the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Presently pending before the court is defendants' motion to dismiss the operative first amended complaint pursuant to Fed. R. Civ. P. 12(b)(6), originally noticed for hearing on March 15, 2012. (Dkt. No. 21.) After plaintiff failed to file a timely opposition pursuant to E.D. Cal. L.R. 230(c), the motion was submitted on the record without oral argument. (Dkt. No. 22.) Subsequently, on March 6, 2012, plaintiff filed a tardy opposition*fn1 to the motion along with a "motion for summary judgment." (Dkt. No. 25.)

After reviewing the papers in support of and in opposition to defendants' motion, the court's record in this matter, and the applicable law, the court now FINDS AS FOLLOWS: BACKGROUND

The background facts are taken from the operative first amended complaint, unless otherwise noted. Plaintiff alleges that on March 26, 2011, while she was sitting in her car parked in front of a gym, two Sacramento County Deputy Sheriffs, Paul Tassone and Bruce Smith, stopped their patrol car behind her vehicle and approached her in a frightening, hostile, and aggressive manner with their loaded guns drawn, without probable cause or reasonable suspicion of criminal activity. (See First Amended Complaint, Dkt. No. 11 ["FAC"] ¶¶ 5, 21-24.) The officers demanded that she show her hands and exit her vehicle, and ignored her requests for them to explain what she had done wrong. (FAC ¶¶ 5, 25-26.) When Tassone asked plaintiff if she had identification, she replied "if I did something wrong, sure." (FAC ¶ 27.) Tassone and Smith then told plaintiff that she was required to give her identification whenever a "California cop" asks for it and that they were going to take her to jail. (FAC ¶ 28.) Plaintiff attempted to explain the "Stop and Identify/Terry case law," but Tassone and Smith dismissed plaintiff's interpretation of the law. (FAC ¶ 29.) Tassone then handcuffed plaintiff while Smith kept his gun pointed at plaintiff. (FAC ¶ 30.)

Thereafter, Tassone searched plaintiff's vehicle and personal property, stating that they had a right to know who plaintiff was. (FAC ¶¶ 5, 31.) Tassone and Smith also ran a search on plaintiff's tags and her name. (FAC ¶ 33.) Additionally, Tassone went into the gym and asked the desk attendant whether plaintiff was a member of the gym. (FAC ¶ 37.) Plaintiff asked several times what she was being detained or arrested for, but purportedly did not receive a response, although she does allege that Tassone and Smith at one point told her that she was being detained because she was violent "to create a justification for the in car camera." (FAC ¶¶ 32, 35-36.) During this time, plaintiff was detained in the back of the patrol car and released after 25-30 minutes without an explanation and with a demand that she leave the parking lot. (FAC ¶¶ 5, 32, 38.)

Plaintiff further alleges that the deputy sheriffs subsequently intentionally and maliciously completed a false event report, falsely accusing plaintiff of trying to place something behind her back as the officers approached, refusing to identify herself, and being confrontational, yelling, violent, and uncooperative. (FAC ¶¶ 6, 39-43.)

When plaintiff lodged a citizen's complaint regarding the incident with the Sacramento County Sheriff's Department, defendant Matt Morgan, a lieutenant for Sacramento County Sheriff Department Bureau of Professional Standards, allegedly refused to investigate it and forwarded her complaint to another division. (FAC ¶ 44.) Defendant Jeana Zwolinski, the sergeant in charge of Tassone and Smith, also informed plaintiff that plaintiff's complaint was not an internal affairs issue, that she was proud of her officers, and that everything was done by the book. (FAC ¶¶ 45-46.)

On August 5, 2011, plaintiff filed the instant action for damages primarily alleging liability for constitutional violations under 42 U.S.C. § 1983 and for related state law tort claims. (Dkt. No. 1.) Subsequently, on October 31, 2011, the court dismissed some of plaintiff's claims with leave to amend pursuant to 28 U.S.C. § 1915. (Dkt. No. 8.) Thereafter, on November 28, 2011, plaintiff filed a first amended complaint. (Dkt. No. 11.) The first amended complaint names Tassone, Smith, Zwolinski, Scott Jones (the Sacramento County Sheriff), Morgan, the Sacramento County Sheriff Department Bureau of Professional Standards, the Sacramento County Sheriff Department, and the County of Sacramento as defendants.*fn2 On December 6, 2011, the court ordered service with the first amended complaint on all named defendants, except the Sacramento County Sheriff Department Bureau of Professional Standards, which the court held was simply a sub-department within the Sacramento County Sheriff Department. (Dkt. No. 13.)

The instant motion to dismiss followed.


In considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). However, to avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. 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." Iqbal, 129 S. Ct. at 1949.

Before turning to an analysis of each individual substantive claim raised by plaintiff, the court first addresses defendants' argument that certain individual and entity defendants should be dismissed from the case.

Defendant Sacramento County Sheriff Department

Defendants correctly argue that defendant Sacramento County Sheriff Department is an improper party to the action, because it is merely a department or subdivision of the local government entity properly named as a party, in this case the County of Sacramento. See Pellum v. Fresno Police Dep't, 2011 WL 350155, at *2 (E.D. Cal. Feb. 2, 2011); Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (noting that the term "persons" for purposes of section 1983 does not encompass municipal departments); Stump v. Gates, 777 F. Supp. 808, 816 (D. Colo. 1991) ("naming a municipal department as a defendant is not an appropriate means of pleading a § 1983 action against a municipality.") To the extent that plaintiff asserts state law claims against the Sacramento County Sheriff Department, it remains true that it is a superfluous party to the litigation, because as a municipal department, it cannot be held liable for damages separate from the County of Sacramento. Therefore, defendant Sacramento County Sheriff Department should be dismissed with prejudice as an improper party.

Defendants Jeana Zwolinski, Scott Jones, and Matt Morgan Defendant Zwolinski is the sergeant in charge of Tassone and Smith. (FAC ¶ 13.) Defendant Scott Jones is the sheriff of the Sacramento County Sheriff Department. (FAC ¶ 14.) Defendant Matt Morgan is a lieutenant in the Sacramento County Sheriff Department Bureau of Professional Standards tasked with investigating complaints against deputy sheriffs. (FAC ¶ 16.)

Plaintiff asserts claims for constitutional violations pursuant to 42 U.S.C. § 1983 and state law claims against these defendants. With respect to the constitutional claims, the Civil Rights Act provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Liberally construed, plaintiff's first amended complaint essentially seeks to hold defendants Zwolinski, Jones, and Morgan liable under 42 U.S.C. § 1983 on theories of supervisory liability for the actions of Tassone and Smith, failure to investigate plaintiff's complaints, and conspiracy. However, for the reasons discussed below, the first amended complaint does not cure the deficiencies of the original complaint with respect to these claims as previously outlined in the court's screening order pursuant to 28 U.S.C. § 1915.

Supervisory Liability

Importantly, supervisors cannot be held liable in their individual capacities unless a causal connection is established between the acts alleged to have breached a constitutional duty and the harm allegedly suffered by plaintiff.

A defendant may be held liable as a supervisor under § 1983 "if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989). "[A] plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury. The law clearly allows actions against supervisors under section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under color of law of a federally secured supervisorial." Redman, 942 F.2d at 1447 (internal quotation marks omitted). "The requisite causal connection can be established ... by setting in motion a series of acts by others," id. (alteration in original; internal quotation marks omitted), or by "knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury," Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). "A supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others." Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted).

Starr v. Baca, 652 F.3d 1202, 1207-1208 (9th Cir. 2011) (emphasis added); see also Jones v. Williams, 297 F.3d 930, 937 (9th Cir. 2002). In addition, the Ninth Circuit has again emphasized that the pleading of supervisorial liability is subject to the Iqbal standards. Chavez v. United States, No. 10-17659 (9th Cir. June 20, 2012). Thus, there must be facial plausibility in a plaintiff's allegations that some action/inaction on the part of a supervisor caused her alleged constitutional injury.

As an initial matter, there is no indication that Morgan had any supervisory responsibility (beyond the authority to perform an internal investigation, discussed below) for Tassone and Smith. Moreover, even assuming for the moment that Tassone and Smith violated plaintiff's constitutional rights during the detention and search, the first amended complaint makes clear that Zwolinski, Jones, and Morgan were not at the scene and thus did not personally participate in the detention and search. Indeed, plaintiff alleges that Zwolinski and Morgan only became aware of the incident when she filed a citizen's complaint, and does not even allege that Jones is personally aware of the incident. Thus, there are no facts suggesting that these defendants ordered the detention and search, or knew about it but failed to prevent it.

Plaintiff claims that Zwolinski later stated that she was proud of her officers and that she believes that they had done everything by the book. However, plaintiff does not articulate how these general expressions of confidence in her officers' compliance with the law, made after the fact, caused the alleged unreasonable search and detention. Furthermore, Jones appears to have been named as a defendant solely due to his position as Sacramento County Sheriff. Plaintiff's vague allegations that Jones disseminated unconstitutional policies and endorsed illegal police methods or customs are entirely conclusory and patently insufficient to state a claim against Jones.

Thus, plaintiff fails to specifically allege any causal link between defendants Zwolinski, Jones, and Morgan to the alleged constitutional violations by Tassone and Smith sufficient to hold these defendants liable under a theory of supervisory liability. Plaintiff was previously advised of the legal requirements to state a claim under a theory of supervisory liability and failed to cure the identified deficiencies upon being granted leave to amend. Moreover, given the lack of connection between these defendants and plaintiff's detention and search, it seems implausible that the claim could be cured by further amendment. Therefore, plaintiff's 42 U.S.C. § 1983 claim against these defendants on the theory of supervisory liability should be dismissed with prejudice.

Failure to Investigate

Plaintiff further alleges that Zwolinski, Jones, and Morgan refused to investigate her citizen's complaint against Tassone and Smith in violation of her Due Process rights under the Fourteenth Amendment.*fn3 The Fourteenth Amendment to the United States Constitution provides that a State shall not "deprive any person of life, liberty, or property, without due process of law." As an initial matter, plaintiff fails to provide any authority for the proposition that she has a valid property interest*fn4 in, or an entitlement to, an internal investigation of her complaint. The court is unaware of any federal law governing the internal disciplinary affairs of a county sheriff department, and plaintiff does not even point to any particular state law addressing the matter.

Moreover, even if state law does somehow create an entitlement to an internal investigation, that does not mean that it constitutes a property interest for purposes of the Due Process Clause. See Town of Castle Rock v. Gonzalez, 545 U.S. 748, 766 (2005) (holding that a plaintiff did not have a property interest under the Due Process Clause in police enforcement of a restraining order against her husband). As the U.S. Supreme Court noted in Town of Castle Rock with respect to enforcement of restraining orders, the performance of an internal investigation does not "resemble any traditional conception of property," does not "have some ascertainable monetary value," and has only an indirect and incidental effect on plaintiff. Town of Castle Rock, 545 U.S. at 766-68. The focus of such an investigation would obviously be the internal discipline of the deputy sheriffs involved. Even if the court accepts plaintiff's contention that the failure to investigate places her at further risk of unconstitutional violations, a somewhat speculative assertion at that, it does not change the indirect and incidental nature of any such consequences. Even though the consequences of the police's failure to enforce the restraining order in Town of Castle Rock were dire, resulting in the death of that plaintiff's children, the U.S. Supreme Court nonetheless found the benefit to the plaintiff of restraining orders' enforcement to be too indirect and incidental to constitute a property interest under the Due Process Clause. Id. at 767-68.

Therefore, the court concludes that plaintiff does not have a protected property interest in an internal investigation of her complaint for purposes of the Due Process Clause of the Fourteenth Amendment, and as such, defendants Zwolinski, Jones, and Morgan cannot be held liable under that theory. Accordingly, further leave to amend this claim against these defendants would be futile and it should be dismissed with prejudice.


Plaintiff also alleges that Morgan and Zwolinski conspired with Tassone and Smith to deprive plaintiff of her constitutional rights in violation of 42 U.S.C. § 1983. To state a claim for conspiracy under 42 U.S.C. § 1983, plaintiff must plead specific facts showing an agreement or meeting of minds between the defendants to violate her constitutional rights. Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th Cir. 1989). Plaintiff must also show how an actual deprivation of her constitutional rights resulted from the alleged conspiracy. Id. Because a conspiracy claim under 42 U.S.C. ยง 1983 requires proof of subjective intent, it is subject to a heightened pleading standard. Turner v. County of Los ...

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