United States District Court, N.D. California, San Jose Division
For Anthony Davis, Plaintiff: DeWitt Marcellus Lacy, John L. Burris, LEAD ATTORNEYS, Law Offices of John L. Burris, Oakland, CA.
For City of San Jose, Defendant: Erich Joseph Lidl, Liedle, Lounsbery, Larson and Lidl, LLP, San Diego, CA.
For Michael Montonye, Tyler Krauel, Thomas Boyle, Defendants: Tamara G. Vail, Erich Joseph Lidl, Liedle, Lounsbery, Larson and Lidl, LLP, San Diego, CA.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS THIRD AMENDED COMPLAINT
[Re: ECF 33]
BETH LABSON FREEMAN, United States District Judge.
In this civil rights lawsuit against individual police officers of the San Jose Police Department, defendants Michael Montonye, Tyler Krauel, and Thomas Boyle (collectively " Defendants" ) have moved to dismiss the Third Amended Complaint (" TAC" ) by plaintiff Anthony Davis for failure to state a claim. Def.'s Mot., ECF 33. On September 18, 2014, the Court heard oral argument on Defendants' motion. Having considered the parties' respective written submissions as well as the oral argument of counsel, the Court hereby GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss for the reasons stated herein.
On June 20, 2014, this Court dismissed Plaintiff's Second Amended Complaint with leave to amend, finding that Plaintiff had not alleged sufficient facts to suggest a plausible entitlement to relief for his civil rights and tort claims against Defendants and against the City of San Jose. See Order, ECF 31. Plaintiff then filed the TAC before the Court. The following facts from the TAC are taken as true and viewed in the light most favorable to Plaintiff:
On May 5, 2012, Plaintiff was celebrating Cinco de Mayo with his girlfriend, Ms. Pascasio, on Santana Row in San Jose, California, when they had a " brief non-violent verbal dispute." TAC ¶ 12, ECF 32. Ms. Pascasio ended up in the parking structure at Steven's Creek Mall, where Plaintiff went to go check on her. Around this time, Defendants arrived in response to " a non-descript 'disturbing the peace' call for service after a witness indicated seeing a young woman sitting in a parking structure crying." Id. While Plaintiff waited inside his car, Defendants " confronted Ms. Pascasio," who was " visibly upset and yelled expletives" at Defendants, " but also informed the officers that she was okay and just wanted to be left alone." Id. ¶ 13. Ms. Pascasio then walked away from Defendants " and the area where Plaintiff could monitor her well-being," so Plaintiff left his parked car to follow her. Defendants allegedly " left the immediate vicinity and returned to their regular duties monitoring the area from within a security office." Id.
" Minutes later," as Plaintiff attempted to console his girlfriend, Defendants returned and approached the couple despite Ms. Pascasio " waving her open hand while shaking her head as she again told Defendant officers she was okay and did not need their assistance."  Id. ¶ 14. As Defendants continued their approach, Plaintiff " put one hand around the waist of Ms. Pascasio" then " put his hand over Ms. Pascasio's mouth to prevent her from making any further disparaging remarks." Id. ¶ 15. With his arm around her waist and his hand over her mouth, Plaintiff attempted to explain that his girlfriend " suffered from a bi-polar disorder and was experiencing an episode due to a recent ween off of her proscribed [sic] medication." Id. ¶ 16.
Defendants, allegedly without any warning or statement that indicated their intent to detain or arrest either Plaintiff or Ms. Pascasio, " threw several striking blows to Plaintiff's head" then " threw Plaintiff to the ground." Id. Defendants " kicked Plaintiff all over his body and in the face" and " repeatedly slammed Plaintiff's head against the ground." Id. ¶ 18. They put Plaintiff into a chokehold and, despite his " moan[ing], " I can't breathe," kept him in the chokehold until he lost consciousness. Id. ¶ ¶ 18-19.
Plaintiff regained consciousness in an ambulance. Id. ¶ 20. He later underwent surgery for a nasal fracture and deviated septum and was treated for a fractured hand and finger. Id. Plaintiff was also charged with assaulting an officer and resisting arrest, though those charges were dismissed. Id. ¶ 21.
II. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191, 1199-200 (9th Cir. 2003). To survive a motion to dismiss, a complaint must plead sufficient " factual matter, accepted as true" to " allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In assessing the sufficiency of a plaintiff's pleadings,
" the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id. The plausibility standard " asks for more than a sheer possibility that a defendant has acted unlawfully," and a complaint that pleads facts that are " merely consistent with" a defendant's liability " stops short of the line between possibility and plausibility." Id. (internal quotations omitted).
If a motion to dismiss is granted, a court should normally grant leave to amend, " even if no request to amend the pleading was made," unless amendment would be futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotations omitted). However, a district court's discretion to deny leave to amend is " particularly broad" where a plaintiff has previously amended. Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (citing Sisseton--Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996)).
Plaintiff's TAC asserts seven claims against Defendants: three claims pursuant to 42 U.S.C. § 1983 for unlawful detention (First Cause of Action (" COA" )), unlawful arrest (Second COA), and excessive force (Third COA), as well as state law claims for intentional infliction of emotional distress (Fourth COA), violation of California Civil Code § 52.1 (Fifth COA), assault and battery (Sixth COA), and negligence (Seventh COA). Defendants ...