United States District Court, N.D. California
ORDER DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS; GRANTING MOTION TO STRIKE Re: Dkt. No. 24.
VINCE CHHABRIA, District Judge.
Plaintiff Romon Calhoun has filed suit against the City of Hercules Police Department and two Hercules police officers, Officer Dwayne Collard and Detective Robert Pesmark, alleging that he was arrested without probable cause, that the police conducted an illegal search of his car, and that the City of Hercules has illegally refused to return his firearm. The Court previously dismissed Calhoun's claims against the City of Hercules Police Department and the individual officers, but granted Calhoun leave to amend. (Docket No. 18). In his First Amended Complaint, Calhoun has added new claims; he now alleges (1) a false arrest by Officer Collard, in violation of 42 U.S.C. § 1983 and the Fourth Amendment; (2) unlawful search of his car, in violation of 42 U.S.C. § 1983 and the Fourth Amendment, with the allegation that Detective Pesmark searched Calhoun's car before receiving a warrant; (3) unlawful search of his car on the ground that Detective Pesmark gave a false statement to the superior court judge to procure the warrant; (4) violation of his Fourteenth Amendment due process rights; (5) conspiracy to interfere with his civil rights, in violation of 42 U.S.C. § 1985(3); (6) failure to prevent a conspiracy to violate his civil rights, in violation of 42 U.S.C. § 1986; and (7) failure to return his firearm, in violation of California Penal Code §§33855 and 33885. Calhoun's First Amended Complaint also contains far more detailed factual allegations than his original complaint, most of which appear to be taken from two reports, one provided by Mr. Chan, the welfare fraud investigator whose encounter with Calhoun led to Calhoun's arrest, and the other from Officer Collard, who arrested Calhoun. Because Calhoun has now alleged facts making it plausible he was arrested without probable cause, the motion to dismiss his first claim is denied.
Defendants' motion to dismiss Calhoun's remaining claims are granted. With respect to Calhoun's claim for the return of his firearm, defendants' motion to dismiss is granted with leave to amend, as Calhoun may continue to pursue this claim if he does not receive his firearm and can identify a violation of law. However, his remaining claims are dismissed with prejudice, because the Court can conceive of no way Calhoun could cure the deficiencies in those claims.
I. False Arrest Claim Against Officer Collard
This case stems from Officer Collard's arrest of Calhoun during the afternoon of March 12, 2013. Earlier that day, Chan, an investigator from the Contra Costa County Employment and Human Services Department, was conducting a fraud investigation at the home of Calhoun's friend, Ms. Jones. After Chan finished questioning Jones, he asked her if he could search her apartment, and Jones agreed, though Calhoun alleges that Chan coerced Jones' consent. According to the complaint's recitation of Chan's report, Chan entered a bedroom where he encountered Calhoun sitting on the bed, and Calhoun yelled out to Jones, "Who the fuck is this?", or something similar. Chan then searched the bedroom closet and, when he turned back around, noticed that Calhoun had a gun on his thigh. Chan, while moving toward the bedroom door, asked Calhoun if the gun was real, indicating that if it was real he would have to leave, to which Calhoun responded by asking Chan if his badge was real and directing Chan to get the fuck out of the apartment. Chan then left the apartment and, at some point in the next several hours, reported the incident to the Hercules Police Department. Later that afternoon, Officer Collard showed up at Jones' apartment, encountered Jones and Calhoun in the parking lot, and, after Chan positively identified Calhoun, arrested Calhoun for a violation of California Penal Code § 69, which makes it a crime for anyone "who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law." Cal. Pen. Code § 69.
Though Calhoun recites these facts in his complaint, it appears as if he may be alleging them to establish the facts as Chan reported them, rather than the facts as Calhoun believes they are, because at one point in his complaint Calhoun alleges that "Mr. Calhoun was in the final bedroom of the apartment to the far right of the door sitting at the edge of the bed trying out a video game when Mr. Chan came in looked around and left with no incident." First Amended Complaint, ¶ 5. Regardless, Calhoun has not sued Chan or the Contra Costa County Employment and Human Services Department, so what matters for Calhoun's false arrest claim against the City of Hercules and Officer Collard is not whether Chan reported the incident truthfully, but rather what information Officer Collard had at the time of the arrest. See Garcia v. Cnty. of Merced , 639 F.3d 1206, 1209 (9th Cir. 2011).
Calhoun's complaint provides information on this point as well, as a section of his complaint appears to recite Officer Collard's report in which Collard documents his communication with Chan:
I asked Chan if the male subject ever made any threats with the firearm and he said no. I asked Chan if the male subject ever reached for the firearm and he said no. I asked Chan if he felt threatened by the male subject and he said yes. I asked Chan if he felt as though his safety would have been in danger if he would have continued his duties and he said yes. I asked Chan what crimes were committed by the male subject and he stated P.C. 69 and P.C. 148.
First Amended Complaint, ¶ 20. At the motion to dismiss stage, this allegation makes it plausible that Collard did not have probable cause to arrest Calhoun, depending upon further evidence about how this conversation went. For example, one plausible interpretation of this conversation is that Collard was skeptical whether probable cause existed, to the point that he began questioning (after learning that Calhoun did not overtly threaten Chan) whether Calhoun had committed a crime. And Chan's subjective feeling that he was in danger, without more, is likely insufficient to create probable cause. This is admittedly a close question, which itself may support an argument for qualified immunity by Collard, but no such argument was made by defense counsel in connection with the motion to dismiss. Accordingly, the motion to dismiss Calhoun's first cause of action against Collard is denied.
II. False Arrest Claim Against the City of Hercules
Calhoun has also sued the City of Hercules Police Department under 42 U.S.C. § 1983 in connection with his allegedly false arrest. As the Court's earlier Order made clear, "a city is not liable for the unlawful conduct of its employees unless the employees were implementing an official policy, or acting in accordance with an official custom, when they engaged in the unlawful conduct." (Docket No. 18) See Monell v. New York City Dept. of Social Services , 436 U.S. 658, 690 (1978). Calhoun alleges that the Police Department's failure to prevent the officers' unlawful conduct, and its failure to terminate them after that conduct, reflects an official custom or policy of the Police Department such that it should be liable. While these allegations are admittedly bare, the Court will not dismiss the claim against the Hercules Police Department at this time, as it is conceivable, giving this ...