United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS WITHOUT LEAVE TO AMEND [ECF Nos. 7, 8]
CYNTHIA BASHANT, District Judge.
On January 20, 2014, Plaintiff Eduardo Arzate commenced this civil-rights action for the alleged use of excessive force against Defendants City of Escondido ("City"), Officer Kevin J. Stowe, Officer Juan Alva, and Officer Todd Gimenez. The City, Officer Alva, and Officer Gimenez now move to dismiss only the state-law claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Officer Stowe also separately moves to dismiss the state-law claims. Mr. Arzate opposes both motions.
The Court finds these motions suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS WITHOUT LEAVE TO AMEND Defendants' motions to dismiss.
On October 27, 2012, at approximately 1:30 a.m., Mr. Arzate was a passenger in a black GMC pickup truck driven by another individual in the City of Escondido. (Compl. ¶ 11.) At approximately the same time, Officer Alva was dispatched to a local business called the Sunset Lounge to "investigate a reported disturbance by two men in a pickup truck." ( Id. ¶ 12.)
Mr. Arzate alleges that Officer Alva "saw the pickup truck leaving the Sunset Lounge and conducted a traffic stop by activating his overhead emergency lights[, ]" stopping the pickup truck one-and-a-half blocks north of the Sunset Lounge. (Compl. ¶ 13.) Officer Alva "took up a position behind the pickup truck, drew his firearm and pointed the weapon at the occupants of the pickup truck as he waited for other support officers to arrive." ( Id. ¶ 14.) Shortly thereafter, Officers Gimenez and Stowe arrived along with "other officers" from the Escondido Police Department. ( Id. ¶ 15.) Officer Stowe retrieved "a 40 millimeter caliber launcher and several 40 millimeter caliber eXact iMpact foam baton rounds" from his patrol car, and both officers took positions similar to Officer Alva's behind the pickup truck with their weapons drawn. ( Id. ¶¶ 16-17.)
Once in position, Officer Alva and "at least one other officer" instructed the pickup-truck driver over the public-address system to exit the vehicle. (Compl. ¶ 18.) The driver did not comply. ( Id. ¶ 19.)
Then Officer Alva instructed the passenger, Mr. Arzate, over the public-address system to exit the vehicle. (Compl. ¶¶ 20-25.) After following the initial instructions given, Mr. Arzate "was standing next to the pickup truck facing away from the officers with both hands in the air." ( Id. ¶ 26.) He was wearing "a loose fitting t-shirt that covered the waistband of his short pants" at the time. ( Id. ) Officer Alva or another officer instructed Mr. Arzate to "Take your right hand and pick up the back of your shirt... from the neck." ( Id. ¶ 28.) As Mr. Arzate began to "reach down behind him toward the back of his shirt, " several officers allegedly shouted, "from the neck" or "by the neck." ( Id. ¶ 28.) According to Mr. Arzate, the public-address system was distorted by static or feedback, and there was a police canine present that was "continually barking." ( Id. ¶¶ 27-28.)
One officer who was closest to Mr. Arzate allegedly shouted, "pick up your shirt with your right hand[.]" (Compl. ¶ 29.) Mr. Arzate alleges that he "immediately complied by picking up the bottom of his t-shirt with his right hand to show the officers there was no weapon in his waistband and that he was unarmed." ( Id. ) However, when he "lifted up the right side of his t-shirt, exposing his waistband, " Officer Stowe "fired the 40 millimeter caliber launcher at [Mr. Arzate's] back." ( Id. ¶ 30.) Mr. Arzate then "fell to ground and began to roll around on the ground, writhing and crying out in pain." ( Id. )
As Mr. Arzate was rolling on the ground, "writhing in pain and cursing at the officers for having shot him, " Officer Alva instructed Mr. Arzate to "put your hands over your head." (Compl. ¶ 32.) Another officer also allegedly yelled out, "put your hands on your head." ( Id. ) Because of the pain allegedly caused by the first "foam baton round" that had struck him, Mr. Arzate alleges that he was "only able to place one hand on the back of his neck." ( Id. ¶ 33.) He further alleges that he was "unable to immediately comply with the inconsistent and contradictory commands coming simultaneously from different officers." ( Id. )
Officer Stowe then fired a second "foam baton round" that struck Mr. Arzate in the arm. (Compl. ¶ 24.)
Eventually, Mr. Arzate placed both hands on the back of his neck, and Officer Gimenez arrested him. (Compl. ¶ 35.)
Following the incident, Mr. Arzate was treated by paramedics and then transported to Palomar Medical Center for further treatment. (Compl. ¶ 36.) Mr. Arzate alleges that he sustained injuries "requir[ing] six surgical staples to close a severe laceration to his left forearm, " and "suffered contusions and severe pain and suffering." ( Id. ) He was then transported to the Vista Detention Center where he was booked. ( Id. ¶ 37.)
On January 20, 2014, Mr. Arzate commenced this civil-rights action against Defendants. He asserts claims divided into three categories: (1) "Federal Constitutional Claims" against Officers Stowe, Alva, and Gimenez; (2) "Federal Constitutional Claims" against the City; and (3) "State Law Claims" against Officers Stowe, Alva, and Gimenez. According to the complaint, the state-law claims "constitute the torts of assault, battery, false arrest, false imprisonment, and malicious prosecution under the laws of the State of California." (Compl. ¶ 51.) The City, Officer Alva, and Officer Gimenez now move to dismiss only Mr. Arzate's state-law claims ...