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Joseph Devincenzi v. City of Chico

December 17, 2012



Defendants City of Chico, Regan Ortega, Travis Dyke, David Quigley, Mike Frakes, Renee Anderson, Jose Laren, Sean Millard, York Insurance Services, and Karen Peacock (collectively, "defendants") bring a motion to dismiss plaintiff John DeVincenzi's Second Amended Complaint. Because plaintiff has pled sufficient facts to sustain his 42 U.S.C. § 1983 claim, defendants' motion to dismiss is DENIED as to this claim. However, because plaintiff voluntarily has abandoned all claims against several of the originally named defendants, the motion is GRANTED as to those defendants.


Plaintiff filed his complaint on December 8, 2011 and his first amended complaint on January 24, 2012, seeking declaratory relief and bringing claims of fraud and recission regarding a settlement agreement entered into with some of the defendants. (ECF 1, 7.) Defendants filed a motion to dismiss the first amended complaint on February 24, 2012. (ECF 17.) Defendant County of Butte was dismissed by stipulation on May 21, 2012. (ECF 25.) The court granted plaintiff leave to amend on August 29, 2012, denying defendants' motion to dismiss without prejudice. (ECF 32.) Plaintiff filed his Second Amended Complaint ("SAC") on September 18, 2012, and filed a corrected version on September 21, 2012, bringing a single claim under 42 U.S.C. § 1983. (ECF 33, 34.) Citations to the complaint in this order are to the corrected document. (ECF 34.) On October 2, 2012, defendants filed this motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (ECF 35.)


On December 9, 2009, plaintiff called the police to his home due to a disturbance.

(SAC ¶¶ 14-15.) When the police arrived, plaintiff's inebriation was apparent: a preliminary screening showed his blood alcohol content was over .10, and he could not even lean against a pole and remain steady. (Id. ¶ 15.) Responding officers Travis Dyke (called "Stephen" Dyke in defendants' motion) and Jenkins determined that plaintiff had a history of psychiatric illness, had attempted suicide on several occasions, and had been institutionalized by state authorities. (Id. ¶ 16.) Plaintiff told Officer Jenkins that he took medication for schizophrenia and bipolar disorder. (Id. ¶ 17.) Officer Dyke confirmed this information with police dispatch. (Id.) The officers took plaintiff into custody on an alcohol-related charge. (Id. ¶ 18.) Upon arrest, plaintiff was searched at least once; however, the officers either did not discover or failed to remove the lighter in plaintiff's right front pants pocket. (Id. ¶ 23.)

During the ride to the police station, plaintiff banged his head against the plexiglass and kicked at the metal cages covering the windows. (Id. ¶ 18.) He shouted, made suicide threats, and told Officer Dyke that he was going to hang himself. (Id.) Eventually, plaintiff was shackled hand and foot and placed into a transport van to be transferred to the Butte County Jail. (Id. ¶ 20.) Community Services Officer Mike Frakes helped subdue plaintiff and transfer him to the van. (Id. ¶ 22.) Officer Frakes was also privy to plaintiff's mental illnesses and past suicide history. (Id.) Officers Dyke and Frakes both knew plaintiff was very inebriated and volatile. (Id. ¶ 24.)

While in the transport van, shackled hand and foot, plaintiff attempted to light a cigarette with his lighter and either accidentally set his clothing on fire or actually attempted suicide by fire. (Id. ¶ 30.) Plaintiff suffered third degree burns over thirty-two percent of his body. (Id. ¶ 33.) Defendant officers ignored plaintiff's cries for help for some time; their failure to monitor him, in keeping with defendant City of Chico's customs and policies, worsened plaintiff's injuries. (Id. ¶¶ 31-32.) Plaintiff seeks general and special damages.


Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of 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).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," FED.R.CIV. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action . . . .'"

Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

In making this context-specific evaluation, this court "must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A court's consideration of documents attached to a complaint or ...

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