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Kenney v. City of San Diego

United States District Court, Ninth Circuit

January 28, 2014

JOHN B. KENNEY, Plaintiff,
v.
CITY OF SAN DIEGO, et al., 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 First Amended 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. 26); and (2) the Motion to Dismiss First Amended Complaint filed by Defendant San Diego Sheriff's Department ("Sheriff's Department") (ECF No. 27).

I. Background

On January 30, 2013, Plaintiff John B. Kenney, proceeding pro se, filed a Complaint in this Court. (ECF No. 1). On September 20, 2013, the Court granted in part and denied in part the motions to dismiss the Complaint filed by the City Defendants and the Sheriff's Department. (ECF No. 20).

On October 21, 2013, Plaintiff filed a First Amended Complaint. (ECF No. 21).

A. Allegations of the First Amended 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. at 10. 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.

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. at 10-11. Defendant Thompson, an SDPD officer, "wrote Plaintiff up for illegal use of horn, '" which resulted in Plaintiff being fined $235.00. Id. at 11.

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. "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.

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. at 12. Plaintiff informed the officers and Defendant Lawrence, an SDPD officer, that the bag belonged to him. Id. The officers drove away with Plaintiff's bag, which was eventually returned to Plaintiff "nearly 20 hours later." Id. The bag "had been thoroughly searched, disorganized, some parts damaged, and some of Plaintiff's possessions were missing." Id.

On March 24, 2012, "Plaintiff was peacefully and lawfully driving his wife home" when Defendant Stum, an SDPD officer, wrongfully stopped and ticketed Plaintiff for making "a rolling stop.'" Id. at 13. "Plaintiff contested this illegal targeting and paid yet another fine of $235.00." Id.

As a result of these five incidents, the First Amended 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 and malicious prosecution; (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) & 1986 and/or California 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 November 4, 2013, the City Defendants filed their Motion to Dismiss. (ECF No. 26). The City Defendants contend that the following claims of the First Amended 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): (1) the ninth cause of action for conspiracy; (2) the tenth cause of action for stalking; (3) the eleventh cause of action for defamation; (4) all of Plaintiff's state law claims relating to the October 14, 2011, November 2, 2011 and December 10, 2011 incidents; (5) the first cause of action for violation of civil rights under 42 U.S.C. § 1983 against the City and the SDPD; (6) all causes of action against Jerry Sanders, William Lansdowne and Jan Goldsmith; and (7) the fourth, fifth, tenth and eleventh causes of action against SDPD Officers Thompson, Lawrence and Stum. The City Defendants move to strike portions of the First Amended Complaint pursuant to Federal Rule of Civil Procedure Rule 12(f). The City Defendants move for a more definite statement with respect to all remaining causes of action pursuant to Federal Rule of Civil Procedure Rule 12(e).

On November 4, 2014, the Sheriff's Department filed its Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 27).

On December 2, 2013, Plaintiff filed oppositions to the Motions to Dismiss. (ECF Nos. 29, 30). Plaintiff contends that the Motions to Dismiss should be denied and requests an award of sanctions.

On December 5, 2013 and December 9, 2013, Defendants filed replies in support of their Motions to Dismiss. (ECF Nos. 31, 32).

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). Federal Rule of Civil Procedure 8(a) provides that "[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. Pacifica Police Dep't, 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)). "To survive a motion to dismiss, 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, 556 U.S. 662, 678 (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. (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679. "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 Service, 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. Section 1985 Conspiracy[1]

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).[2] (ECF No. 26-1 at 10-11). Plaintiff contends that the ninth cause of action, and other allegations in the First Amended Complaint which are incorporated by reference in the ninth cause of action, adequately plead a violation of § 1985(3). (ECF No. 30 at 19-22).

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).

In the Court's September 20, 2013 Order, the Court held that the Complaint's cause of action for conspiracy pursuant to 42 U.S.C. § 1985(3) failed 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). The First Amended Complaint fails to remedy this deficiency. In the First Amended Complaint, Plaintiff alleges that Defendants "targeted [Plaintiff for] support[ing]... the Occupy movement and the demonstration(s) against the banks." (ECF No. 21 at 11). 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 political beliefs." Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 108-09 (1st Cir. 2008) (collecting cases). Accordingly, the City Defendants' Motion to Dismiss the ninth cause of action for conspiracy is granted.

2. Stalking

The City Defendants contend that the tenth cause of action fails to plead the required elements of a claim for stalking pursuant to California Civil Code § 1708.7.[3] (ECF No. 26-1 at 11-12). Plaintiff contends that, "[o]n numerous occasions throughout his Complaint, Plaintiff describes incidents, actions and even intentions of the Defendants using language such as followed', stake-out', targeted', surveil', monitor' and stalked'..., then relates these allegations to plain and simple' description of various incidents." (ECF No. 30 at 22).

California Civil Code § 1708.7 provides:

(a) A person is liable for the tort of stalking when the plaintiff proves all of the ...

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