United States District Court, S.D. California
JASON A. REDON, Plaintiff,
SAN DIEGO COUNTY, CITY OF SAN DIEGO, ANDRES RUIZ, BRANDON JORDAN, DEREK MILLER, SGT BULKOWSKI, SGT D GRUBBS, OFFICER GIBSON, OFFICER POTTIN, OFFICER NATAL, OFFICER JOHN DOES 1-X, WILLIAM LANSDOWNE, JAN GOLDSMITH, MICHAEL LEE FICKEN, MIRIAM MILSTEIN, DIANA DOHERTY, JOHN DOES 2-X, SGT SHAW, UNNAMED SAN DIEGO POLICE OFFICER, Defendants.
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Motion to Dismiss filed by Defendants City of San Diego, City Attorney Jan Goldsmith, Andres Ruiz, Brandon Jordan, Derek Miller, and Miriam Milstein. (ECF No. 11).
Plaintiff Jason A. Redon ("Plaintiff") commenced this action by filing a complaint in the San Diego Superior Court alleging state and federal constitutional violations. (ECF No. 1-2 at 1). On August 27, 2012, Plaintiff filed an amended complaint to recover money damages and injunctive relief ("first amended complaint") in the San Diego Superior Court. (ECF No. 1-2 at 2). On January 8, 2013, Plaintiff served the first amended complaint and summons on Defendant San Diego Police Department. (ECF No. 1-2 at 12).
On July 5, 2013, Plaintiff served the second amended complaint for violation of civil rights and other wrongs on Defendant City Attorney of San Diego. (ECF No. 1-3).
Plaintiff's second amended complaint alleged that "[o]n May 3rd, 2011 and August 19, 2011, the plaintiff was subjected to unnecessary and excessive force by various defendant police officers, including unwarranted, indiscriminate and excessive application of pain compliance holds, carotid restraints and Tasers." Id. at 1. The second amended complaint alleged that "[P]laintiff was injured from improper use of force, including but not limited to the use of Taser causing chest pain, carotid restraint causing neck pain and pain compliance techniques resulting in permanent ligament damage to finger." Id. The second amended complaint alleged that Defendant "acted pursuant to an official unconstitutional policy of the County of San Diego." Id. at 2. The second amended complaint set forth the following causes of action against all Defendants: (1) violation of First and Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983; (2) violation of Fourth and Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983; (3) violations of the Eighth Amendment and Fourteenth Amendment to the United States Constitution under 42 U.S.C. § 1983; (4) denial of California constitutional rights; (5) assault and battery; (6) false arrest and false imprisonment; (7) Cal. Civil Code Section 51.7; (8) Cal. Civil Code Section 52.1; (9) Cal. Civil Code Section 49; (10) Cal. Civil Code 50; (11) intentional infliction of emotional distress; (12) negligence; (13) defamation/slander; (14) abuse of process; and (15) conspiracy. Id. at 5-8.
On July 29, 2013, Defendants filed a notice of removal of civil action in this Court. (ECF No. 1). On August 8, 2013, Defendant Jan Goldsmith filed a motion to dismiss and motion for more definite statement. (ECF No. 2). On August 14, 2013, Plaintiff filed a motion opposing notice of removal of civil action. (ECF No. 4). On August 28, 2013, Plaintiff filed a response opposing the motion to dismiss. (ECF No. 6). On November 8, 2013, this Court denied Plaintiff's motion opposing notice of removal of civil action, granted Defendant's motion to dismiss, and granted Plaintiff leave to amend. (ECF No. 7). The Court concluded that the second amended complaint failed to reference any specific policy or practice, failed to identify any conduct by a specific defendant, and failed to allege any facts showing compliance with the presentation requirement of the California Tort Claims Act. Id. at 6.
On December 23, 2013, Plaintiff filed an amended complaint ("third amended complaint") which is the operative pleading. (ECF No. 8). In the first six causes of actions of the third amended complaint, Plaintiff alleges the following civil rights violations pursuant to 42 U.S.C. § 1983: (1) violations of First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution (styled as "general allegations"); (2) failure to implement appropriate policies, customs, and practices; (3) use of excessive force; (4) false arrest; (5) deprivation of property without due process of law; and (6) administration of cruel and unusual punishment. Plaintiff alleges in claim (7) violations of the Americans with Disabilities Act of 1990 pursuant to 42 U.S.C. § 12181. The remaining allegations are state law claims including: (8) false imprisonment; (9) negligence; (10) negligent supervision; (11) conspiracy; (12) conversion; (13) assault; (14) abuse of process; (15) slander; (16) violation of California Civil Code § 51.7; and (17) violation California Civil Code § 52.1. Id. at 9-19.
On January 13, 2014, Defendants City of San Diego, City Attorney Jan Goldsmith, Andres Ruiz, Brandon Jordan, Derek Miller, and Miriam Milstein filed a motion to dismiss for failure to state a claim. (ECF No. 11). On February 11, 2014, Plaintiff filed a response in opposition to the motion to dismiss. (ECF No. 14). On February 18, 2014, Defendant filed a reply. (ECF No. 16).
CONTENTIONS OF THE PARTIES
Defendants contend that the third amended complaint fails to cure the defects giving rise to the dismissal of the second amended complaint. Defendants assert that the third amended complaint does not allege compliance with the claims presentation requirement of the California Tort Claims Act. Defendants contend that Plaintiff has not alleged sufficient facts to infer the existence of the alleged policies or customs to support a claim for municipal liability against the City. Defendants further contend that all claims against Defendants City Attorney Jan Goldsmith and Miriam Milstein should be dismissed on the ground that they were officials performing prosecutorial functions.
Plaintiff contends that he submitted a letter on December 23, 2013 to the City of San Diego in accordance with the California Tort Claims Act and that there was no requirement to file a right to sue letter with any government agency under California Civil Code §51.7. Plaintiff contends that he has met the threshold of plausibility by alleging sufficient facts pertaining to the Officer's actions including use of excessive force. Plaintiff asserts that his claims pertaining to a specific policy or procedure adopted by the City will be further refined and narrowed through discovery. Plaintiff further contends that City Attorney Miriam Milstein should not be granted prosecutorial immunity because Milstein was not a Deputy City Attorney over the course of Plaintiff's criminal proceeding. Plaintiff contends that the role of City Attorney Jan Goldsmith is purely supervisory in nature and should be granted no immunity from liability for damages. (ECF No. 14).
Under Federal Rule of Civil Procedure 12(b)(6), a pleading may be dismissed if it fails "to state a claim upon which relief can be granted." A district court may dismiss a claim if the complaint (1) fails to state a "cognizable legal theory" or (2) lacks "sufficient facts alleged to support a cognizable legal theory." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (internal quotation marks and citation omitted). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "When reviewing a dismissal for failure to state a claim pursuant to Rule 12(b)(6) all ...