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Kenney v. City of San Diego

United States District Court, Ninth Circuit

September 20, 2013

JOHN B. KENNEY, Plaintiff,
v.
THE CITY OF SAN DIEGO & FEDERAL & PRIVATE CONTRACTOR INTELLIGENCE COMMUNITY AND SECURITY POLICE-STATE INDUSTRIAL COMPLEX CONSPIRATORS, THE SAND DIEGO POLICE DEPARTMENT (SDPD), SDPD EX-CHIEF OF POLICE & THEN-MAYOR OF SAN DIEGO SANDERS, SDPD CHIEF LANSDOWNE, SDPD OFFICERS THOMPSON, LAWRENCE, STUM, SAN DIEGO CITY ATTORNEY JAN GOLDSMITH, SAN DIEGO SHERIFF'S DEPARTMENT & SHERIFF GORE, and DOES 1-20, 000, inclusive, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are (1) the Motion to Dismiss, Motion to Strike and Motion for a More Definite Statement Related to Plaintiff's Complaint ("Motion to Dismiss"), filed by Defendants City of San Diego ("City"), San Diego Police Department ("SDPD"), William Lansdowne, Jerry Sanders, Scott Thompson, Kaseyelee Lawrence, David Stum, and Jan Goldsmith (collectively, "City Defendants") (ECF No. 11); and (2) the Motion to Dismiss Complaint filed by Defendant San Diego Sheriff's Department ("Sheriff's Department") (ECF No. 12).

I. Background

On January 30, 2013, Plaintiff John B. Kenney, proceeding pro se, filed a Complaint in this Court. (ECF No. 1).

A. Allegations of the Complaint

On October 14, 2011, "Plaintiff was lawfully at San Diego City Plaza, located on B St., San Diego... (SD Plaza), peacefully exercising his 1st Amendment rights of Free Speech, " when "Plaintiff personally was assaulted 4 times by various SDPD cops, including, two times having his arm aggressively assaulted with a flesh-ripper' device." Id. ¶¶ 65-66. During the last of the four "assaults" on October 14, 2011, an SDPD officer "grabbed [Plaintiff] by the throat and then slammed him to the ground on his back, " and sprayed Plaintiff in the face with pepper spray. Id. ¶ 66.

On November 2, 2011, "Plaintiff was lawfully driving to S.D. Plaza, in order to peacefully express his 1st Amendment rights, " when Plaintiff honked his horn to express "support of the Occupy movement and the demonstration(s) against the banks." Id. ¶¶ 68-69, 71. Defendant Thompson, an SDPD officer, "wrote Plaintiff up for illegal use of horn, '" which resulted in Plaintiff being fined $235.00. Id. ¶ 70-71.

On December 9, 2011, "Plaintiff was lawfully at S.D. Plaza, peacefully exercising his 1st Amendment rights of Free Speech, " when Plaintiff was "summarily handcuffed... and arrested" by "[s]everal SDPD officers." Id. ¶¶ 73, 75. "Despite violating no law, being arrested at 11:30 pm on the night of 12/9/2011, and the fact his fiance and others contacted Defendant Sheriff's department within 2-3 hours, ... and promptly paid $400.00 in bail, they were unable to do anything because Plaintiff was not in the system' until 12:30 pm the next day, paid the posted bail at that time, called the Sheriff's office again at 4pm, yet still he was not released until almost 21 hours later." Id. ¶ 76.

On January 31, 2012, "Plaintiff was lawfully at S.D. Plaza, peacefully exercising his 1st Amendment rights of Free Speech, " when two SDPD officers "grabbed Plaintiff's bag and, literally, ran away with it." Id. ¶¶ 78-79. Plaintiff informed the officers and Defendant Lawrence, an SDPD officer, that the bag belonged to him. Id. ¶¶ 79-80. The officers drove away with Plaintiff's bag, which was eventually returned to Plaintiff "nearly 20 hours later." Id. ¶¶ 81-82. The bag "had been thoroughly searched, disorganized, some parts damaged, and some of Plaintiff's possessions were missing." Id. ¶ 82.

On March 24, 2012, [1] "Plaintiff was peacefully and lawfully driving his wife home" when Defendant SDPD officer Stum wrongfully stopped and ticketed Plaintiff for making "a rolling stop.'" Id. ¶¶ 84-85. "Plaintiff contested this illegal targeting and paid yet another fine of $235.00." Id. ¶ 86.

As a result of these incidents, the Complaint asserts the following causes of action: (1) violation of civil rights under 42 U.S.C. § 1983; (2) unlawful policies, customs or habits under 42 U.S.C. § 1983; (3) negligence; (4) assault; (5) battery; (6) false arrest/detention - undue delay; (7) negligent and/or intentional infliction of emotional distress; (8) violation of civil rights under California Civil Code §§ 51 & 52; (9) conspiracy under 42 U.S.C. § 1985(3) and/or Penal Code 182; (10) stalking; (11) defamation; and (12) invasion of privacy. Plaintiff requests compensatory, statutory and punitive damages, declaratory and injunctive relief, and attorney's fees and costs.

B. Motions to Dismiss

On June 10, 2013, the City Defendants filed their Motion to Dismiss. (ECF No. 11). The City Defendants contend that the Complaint should be dismissed for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The City Defendants also move to strike portions of the Complaint pursuant to Federal Rule of Civil Procedure 12(f), and move for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e).

On June 11, 2013, the Sheriff's Department filed its Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12).

On July 1, 2013, Plaintiff filed oppositions to the Motions to Dismiss. (ECF Nos. 13, 14). Plaintiff contends that the Motions to Dismiss should be denied and requests an award of sanctions and costs against Defendants for filing the Motions to Dismiss. Alternatively, Plaintiff requests leave to amend the Complaint.

On July 8, 2013, Defendants filed replies in support of their Motions to Dismiss. (ECF Nos. 17, 18).

II. Discussion

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. P. Police Depot, 901 F.2d 696, 699 (9th Cir. 1990).

"[A] plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).

Pro se complaints are held to a less stringent standard than formal pleadings by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se plaintiff's complaint must be construed liberally to determine whether a claim has been stated. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). However, a pro se litigant's pleadings still must meet some minimum threshold in providing the defendant with notice of what it is that it allegedly did wrong. See Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) ("Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.").

B. City Defendants' Motion to Dismiss

1. Eighth Cause of Action[2]

The City Defendants contend that "Plaintiff's eighth cause of action is for a violation of California Civil Code section 51 and/or 52, the Unruh Civil Rights Act, " and the Complaint fails to adequately allege the elements of an Unruh Act claim because "Plaintiff does not allege that the motivating factor for the defendants' conduct was due to his race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status or sexual orientation." (ECF No. 11-1 at 11). Plaintiff contends that "Defendants are correct: Plaintiff does NOT state an Unruh claim, however he does properly state a Banes Act claim... which... is based upon political affiliation.'" (ECF No. 13 at 17).

"The Unruh Act, [California] Civ. Code § 51, is a public accommodations statute that focuses on discriminatory behavior by business establishments."[3] Stamps v. Superior Court, 136 Cal.App.4th 1441, 1452 (2006). The Bane Act allows a person to sue "[i]f a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state...." Cal. Civ. Code, § 52.1(a); see also Bender v. Cnty. of Los Angeles, 217 Cal.App.4th 968, 976-77 (2013). "The Ralph Act makes unlawful any acts of violence, or intimidation by threat of violence, directed against a person because of his or her actual or perceived political affiliation...." Bender, 217 Cal.App.4th at 975 n.2 (citing Cal. Civ. Code, § 51.7). The eighth cause of action alleges that during the October 14, 2011, November 2, 2011, December 9-10, 2011, January 31, 2012 and March 24, 2012 incidents, Defendants violated multiple provisions of the California Civil Code, including the Unruh Act, § 51, the Bane Act, § 52.1, and the Ralph Act, § 51.7.[4] (ECF No. 1 ¶ 136).

The eighth cause of action alleges that "Defendants' wrongful conduct through the acts of unjustified, unreasonable and excessive force, false arrest, false and malicious prosecution, unlawful searches and seizures and multiple due process and equal protection violations, because of the Plaintiff's political affiliations, as alleged... herein, the Defendants discriminated against and interfered with, or attempted to interfere with the Plaintiff's freedom, and other inalienable rights, including but not limited to" numerous provisions of the California and United States Constitutions. Id. The eighth cause of action cites the Bane Act, the Ralph Act and the Unruh Act. As conceded by Plaintiff, the eighth cause of action does not state a claim pursuant to the Unruh Act. The City Defendants do not challenge the sufficiency of the allegations concerning the Bane Act and the Ralph Act. The City Defendants' Motion to Dismiss the eighth cause of action is granted to the extent the Complaint purports to state a claim pursuant to the Unruh Act, and is otherwise denied.

2. Ninth Cause of Action: Section 1985 Conspiracy

The City Defendants contend that the ninth cause of action fails to plead the required elements of a claim for conspiracy pursuant to 42 U.S.C. § 1985(3).[5] (ECF No. 11-1 at 12-13). Plaintiff contends that the ninth cause of action, and other allegations in the Complaint which are incorporated by reference in the ninth cause of action, adequately plead a violation of § 1985(3). (ECF No. 13 at 20-23).

Section 1985(3) provides a civil remedy for conspiracies to deprive a person or class of persons of equal protection of the laws or of equal privileges and immunities. See 42 U.S.C. § 1985(3); Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971). To state a cause of action under 42 U.S.C. § 1985(3), a plaintiff must allege: "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983). To satisfy the second element of a § 1985(3) claim, a plaintiff must allege not only deprivation of a legally protected right, but that such deprivation was "motivated by some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir.1992) (quoting Griffin, 403 U.S. at 102); see also RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir. 2002) ("To bring a cause of action successfully under § 1985(3), a plaintiff must demonstrate a deprivation of a right motivated by some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.") (quotation omitted).

The ninth cause of action for conspiracy pursuant to 42 U.S.C. § 1985(3) fails to adequately allege that Plaintiff was deprived "of a right motivated by some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." RK Ventures, Inc., 307 F.3d at 1056 (quotation omitted). Elsewhere in the Complaint, Plaintiff alleges that Defendants "targeted [Plaintiff for] support[ing]... the Occupy movement and the demonstration(s) against the banks." (ECF No. 1 ¶ 71; see also id. ¶¶ 68, 129). Section 1985(3) does not reach conspiracies motivated by economic or commercial animus. See Scott, 463 U.S. at 836-39. Likewise, a majority of courts that have considered the issue have held that "§ 1985(3) provides no remedy for animus on the basis of ...


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