Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harvey v. Herminghaus

United States District Court, E.D. California

September 15, 2014

DANIEL THOMAS HARVEY, Plaintiff,
v.
ANDREW ESSINGER; CHARLES DULE; SHANNON LANEY; and JAKE HERMINGHAUS, Defendant.

ORDER AND FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, District Judge.

This matter was before the court on April 9, 2014, for hearing on the remaining defendants' motion to dismiss plaintiff's fifth amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] ECF No. 97. Attorney Thomas Watson appeared on behalf of defendants Andrew Eissinger, Charles Duke, Shannon Laney, and Jake Herminghaus, all South Lake Tahoe Police Officers. Plaintiff failed to appear.[2] For the following reasons, it is recommended that defendants' motion to dismiss be granted and plaintiff's fifth amended complaint be dismissed without leave to amend.

I. Procedural History

Plaintiff initially filed this action in June 2010 against the City of South Lake Tahoe, Officers Eissinger and Duke, and the County of El Dorado, alleging a claim under 42 U.S.C. § 1983 and various state law claims. ECF No. 1. After the County moved to dismiss the complaint, plaintiff filed a first amended complaint. ECF No. 13. The court construed that first amended complaint as a motion to amend and granted it. ECF No. 15. Thereafter, the County once again moved to dismiss the amended complaint, ECF No. 16, and the City, Eissinger, and Duke moved to dismiss, to strike, and for a more definite statement, ECF No. 17. The court granted the motions to dismiss and granted plaintiff leave to amend some of his claims. ECF Nos. 33, 35.

Then, on October 19, 2011, plaintiff filed a second amended complaint. ECF No. 38. The County moved to dismiss, ECF No. 40, as did the City, Eissinger, and Duke, ECF No. 39. Again, the court granted the County's motion to dismiss and dismissed the claims against the County without leave to amend. ECF Nos. 50, 56. The court also granted the City defendants' motion to dismiss, dismissed plaintiff's state law claims against those defendants without leave to amend, and dismissed plaintiff's Monell claims against the City and plaintiff's federal claims against Eissinger and Duke with leave to amend. Id.

On July 25, 2012, plaintiff filed a third amended complaint herein. ECF No. 57. Plaintiff also filed another complaint against the City of Lake Tahoe; Douglas County, Nevada; El Dorado County, California; Robert K. Priscaro; and City of Lake Tahoe Officers Jake Herminghaus, Shannon Lacey, and Andrew Eissinger, alleging a claim under 42 U.S.C. § 1983 against all of the defendants and a defamation claim against Douglas County. See 2:12-cv-526-KJM-EFB, Compl., ECF No. 1. In both actions, defendants moved to dismiss.

In the first action, the court granted the individual defendants' and County's motions to dismiss relating to plaintiff's state law claims without leave to amend. ECF No. 73 at 10; ECF No. 78. The court granted the City's and the individual defendants' motions to dismiss with leave to amend. Specifically, plaintiff was permitted to amend his § 1983 Monell claim against the City and his § 1983 claim against defendants Eissinger and Duke.

As for the second action, the court granted Douglas County's motion to dismiss without leave to amend. ECF No. 73 at 16-19; ECF No. 78.[3] The court granted El Dorado County's motion to dismiss relating to the claim against Robert Priscaro for malicious prosecution, and the claim against El Dorado County for excessive bail, without leave to amend. The court granted El Dorado County's motion to dismiss relating to the incident at the El Dorado county jail with leave to amend that claim in the instant action, and granted the individual defendants' motion to dismiss as duplicative of those claims in the first action. Id. at 23-26. The court closed the second case but stated that plaintiff would be permitted to include in any fourth amended complaint in this action, his § 1983 claims against defendants Herminghaus and Laney and/or a § 1983 Monell claim against El Dorado County based only on the County's alleged failure to provide him water while in the County jail. ECF No. 78 at 2.

Plaintiff then filed a fourth amended complaint alleging claims against the City, the County, Eissinger, Duke, Laney, and Herminghaus. ECF No. 79. All defendants moved to dismiss that complaint. ECF Nos. 80, 81. That complaint suggested that each defendant violated his Eighth Amendment right to be free from excessive bail, and his Fifth and Fourteenth Amendment rights to due process. ECF No. 79 at 2. It also suggested that the City and the individual defendants violated his Fourteenth Amendment right equal protection. Id. The court granted the City and County's motion and dismissed the claims against these defendants without leave to amend, finding that plaintiff had failed to allege claims under Monell. ECF No. 89 at 10-18; ECF No. 91. The court also dismissed with leave to amend the claims alleged against the individual officers based on plaintiff's failure to comply with Rules 8 and 10.

On October 28, 2013, plaintiff filed a fifth amended complaint, alleging claims against Eissinger, Duke, Laney, and Herminghaus. ECF No. 92. All defendants have moved to dismiss that complaint. ECF No. 97.

II. Factual Background

Plaintiff's fifth amended complaint alleges claims under 42 U.S.C. § 1983 against defendant officers. ECF No. 92. Plaintiff contends that each defendant violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Although plaintiff has repeatedly amalgamated his allegations and claims as to all defendants into lengthy paragraphs from which it cannot be distilled which claims is asserted as to which defendant and on what specific facts involving that defendant, the underlying basis for whatever claims he attempts to assert centers around two separate incidents: (1) the "Dog Bite Incident, " and (2) the "Brick Incident." Id. at 2-9.

As to the first incident-the "Dog Bite Incident"-plaintiff alleges that on March 18, 2010, he was bitten by a dog belonging to James Handley outside a grocery store in South Lake Tahoe. Id. at 2. When plaintiff informed Mr. Handley of the bite, Mr. Handley "took his dog by leash and fled from the grocery store" on a skateboard. Id. Plaintiff chased after Mr. Handley because he "knew that he needed the dog's vaccination information." Id. Plaintiff "pushed his bicycle against [Mr. Handley], causing the skateboard to be discarded." Id. Plaintiff then grabbed the skateboard, and walked back to Lake Tahoe Boulevard to wait for the police. Mr. Handley did not leave the scene because he did not want to leave his skateboard. Id.

According to the complaint, a woman "saw the culmination of the incident and called 911 reporting that a man stole a skateboard from a kid." Id. When Officers Eissinger and Duke arrived, plaintiff was sitting and waiting for them. Duke interviewed plaintiff and learned how he had stopped Mr. Handley. "Upon learning the details of this dog bite incident officer Duke learned that [plaintiff] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.