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Henneberry v. City of Newark

United States District Court, N.D. California

October 6, 2014

JOHN PATRICK HENNEBERRY, Plaintiff,
v.
CITY OF NEWARK, et al., Defendants.

ORDER RE: MOTIONS TO DISMISS RE: DKT. NOS. 8, 12

MARIA-ELENA JAMES, Magistrate Judge.

INTRODUCTION

Plaintiff John Patrick Henneberry ("Plaintiff") filed this civil rights action on November 12, 2013, seeking damages and declaratory and injunctive relief arising from his arrest and subsequent incarceration. Compl., Dkt. No. 1. Pending before the Court is Defendants' City of Newark, John Becker, David Benoun, Karl Fredstrom, and Renny Lawson's ("City Defendants") Motion to Dismiss portions of Plaintiff's Complaint. Dkt. No. 8. Also pending is Defendants' Newark Chamber of Commerce and Linda Ashley's ("COC Defendants") Motion to Dismiss portions of Plaintiff's Complaint. Dkt. No. 12.

Having considered the parties' papers, relevant legal authority, and the record in this case, the Court GRANTS IN PART and DENIES IN PART Defendants' Motions for the reasons set forth below.

BACKGROUND

A. Factual Background

The following factual background is taken from Plaintiff's Complaint. On April 18, 2013, the Newark Chamber of Commerce ("Chamber") and the City of Newark ("City") held an event called the "2013 State of the City and Showcase" ("Showcase") featuring Newark Mayor Al Nagy as the keynote speaker. Compl. ¶ 2. All of the members of the Newark City Council were invited and attended the event, along with City administrators and members of the Newark Planning Commission. Id. Also present were City Attorney David Benoun and City Manager John Becker. Id.

Plaintiff alleges that the event was publicized via flyers, newspaper listings, and the Chamber and City websites. Id. These flyers showed both the Chamber's and the City's emblem. Id. The webpage stated that a luncheon would be served, but there would be free gallery seating for the public beginning at 12:20 p.m. Id. ¶ 30. Plaintiff believed that based on: (1) the publicly distributed flyers that stated there would be free gallery seating; (2) the fact that a majority of the City Council and the mayor were present; and (3) Plaintiff's understanding of California Government Code section 54952.2(c) ("the Brown Act"), [1] he believed that this event was open to the public. Id. ¶¶ 3, 31.

Plaintiff alleges that he arrived at the event at 12:15 as the luncheon was concluding, but did not enter. Id. ¶¶ 3, 30. Plaintiff entered the main room at 12:25 p.m. and sat quietly in an empty seat in what he surmised was the gallery area. Id. ¶ 30. Plaintiff saw approximately 150 people seated at round tables, with the remains of lunch dishes on the table. Id. He saw approximately 20 to 25 seats organized in rows without tables off to the side by the main entrance, with a few people already sitting down. Id. Plaintiff took an empty seat in this area, which he surmised to be the gallery, and sat quietly. Id.

Plaintiff states he is well known to the elected officials and administrators of the City for his frequent attendance and speech at City Council meetings. Id. ¶ 3. Thus, when City Manager, David Becker noticed him sitting in the gallery, Plaintiff alleges Becker prompted Chamber of Commerce President Linda Ashley to ask him to leave. Id. ¶ 32. Plaintiff believes that Becker wished to remove him because of personal animosity stemming from Plaintiff's prior exercise of his free speech rights at City meetings. Id. Plaintiff alleges that City Attorney Benoun and Newark Police Commander Lawson also told Plaintiff he had no right to be present as this was not a public event, and they demanded that Plaintiff leave. Id.

Plaintiff alleges that after Ashley signed a citizen's complaint, Commander Lawson and Officer Fredstrom forcibly pulled him from his chair, band tied his arms with wristlocks, and physically removed him from the room. Id. ¶¶ 4, 33. Plaintiff alleges that the officers acted "upon the request and consent" of Benoun, Becker, and Ashley. Id.

Once outside the room, Plaintiff was handcuffed and seated in a chair approximately ten feet from the entrance of the meeting. Id. ¶ 34. Then, he was placed in a patrol car for approximately thirty minutes, before being transported to the Newark Police Station. Id. At the Newark police station, Officer Fredstrom interrogated Plaintiff. Id. Plaintiff alleges that during the interrogation, he asserted his right as a member of the public to be at a public meeting in which a quorum of the members of the Newark City Council were present. Id.

After the interrogation, Plaintiff was transported to the Fremont police station, where he remained in the back of a police car, still in too tight wrist locks. Id. ¶ 35. Plaintiff was then driven to Santa Rita jail. Id. Plaintiff alleges he complained that the wrist locks were too tight, but officers denied his requests to have them loosened while he was in the car. Id.

Ultimately, Plaintiff was charged with violating California Penal Code section 602.1(a), a misdemeanor, for interfering with the event[2]. Id. ¶ 37. Although Plaintiff alleges that he should have been cited and released pursuant to Penal Code section 853.6, Officer Fredstrom instead drove Plaintiff to the Santa Rita Jail. Id. Plaintiff alleges that the Alameda County Sheriff's Office ("ACSO"), also a defendant in this case, incarcerated Plaintiff for over thirty hours before ultimately releasing him as required by California law. Id. At the jail, Plaintiff alleges that Sheriff's deputies maliciously informed him that he was required to post $5, 000 bail or he would not be released until his court date. Id. ¶ 37. Plaintiff refused to post bail. Id.

At Santa Rita, Plaintiff alleges he was held with mentally unstable individuals in sordid, crowded cells, and other areas. Id. ¶ 36. The cells were cold, and Plaintiff had no way to care for his personal hygiene. Id. In addition, Plaintiff alleges that there were no private toilet facilities, and he was forced to use a toilet in full view of female jail staff. Id. Plaintiff was charged with trespass, a minor misdemeanor, based on Ashley's citizen complaint. Id. Plaintiff alleges he was held incommunicado, and not given timely access to a phone. Id.

Although Plaintiff informed deputies that he was entitled to be cited and released, Plaintiff alleges he was placed in a holding tank to be processed for a housing unit at the jail. Id. Plaintiff was ultimately released on a citation, and the District Attorney declined to file charges. Id. However, Plaintiff alleges he now has an arrest record, and will incur legal fees to vindicate his rights and expunge the record. Id. ¶ 39.

Plaintiff alleges that the arrest and incarceration by the City and ASCO was intended to chill his exercise of free speech, and that this conduct violated his First Amendment rights. Id. ¶ 38. Plaintiff alleges that the entire incident was to prevent and deter him from engaging in public discourse and to intimidate him from voicing public opinions critical of the City of Newark. Id.

B. Procedural Background

On November 21, 2013, Plaintiff filed a Complaint alleging eight causes of action against the Chamber, the Chamber's president, Linda Ashley, the City of Newark, Newark City Attorney David Benoun, the Newark Police Department ("NPD"), NPD officers Renny Lawson and Karl Fredstrom, and the ACSO. Compl. at 11-13. Ashley, Becker and Benoun are sued in their individual and official capacities. Id. at 14-15.

The first cause of action alleges violation of Plaintiff's First Amendment rights. The second cause of action alleges violation of Plaintiff's Fourth Amendment right to be free from unreasonable seizure, excessive force, and imprisonment without probable cause. The third cause of action alleges violation of Plaintiff's Fourteenth Amendment due process rights. The fourth cause of action alleges violation of Plaintiff's Fourteenth Amendment equal protection rights. The fifth through eighth causes of action assert state law claims for: False Arrest and Imprisonment; Violation of California Civil Code section 51.7 (the "Unruh Act"); Violation of California Civil Code section 52.1 (the "Bane Act"); and Negligence.

The Complaint also includes a section entitled "Requisites for Relief, " which are not incorporated into the above causes of action. Id. ¶¶ 61-65. This section attempts to assert a claim under Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978) against the Chamber, as well as the City and state agencies based on their policies, customs or practices.[3] Id. The Complaint further seeks to certify a class of persons "who instead of being cited and released, were instead detained, arrested, and imprisoned for unreasonable and lengthy periods of time." Id. ¶ 25.

Defendants Ashley and the Chamber filed a Motion to Dismiss (the "COC Mot.") on December 20, 2013, in which they seek to either: (1) strike the Complaint for failure to provide fair notice in compliance with the accepted pleading standards set forth in Federal Rule of Civil Procedure 8(a); or (2) dismiss the Complaint for failure to state a claim against them. Dkt. No. 12. Plaintiff filed an Opposition ("COC Opp'n") on January 10, 2014. Dkt. No. 16. The COC filed a Reply ("COC Reply") on January 16, 2014. Dkt. No. 16.

The City Defendants also filed a Motion to Dismiss raising the following challenges: (1) the claims against defendants Becker and Benoun are barred as those defendants are immune under Government Code section 821.6; (2) the Complaint fails to state a claim against the City of Newark; (3) the Complaint fails to state a claim for violation of civil rights under the Fourteenth Amendment; (4) the Complaint fails to state a claim for violation of Civil Code section 51.7; and (5) the Complaint fails to state a claim for violation of Civil Code section 52.1. Dkt. No. 28 ("New. Mot."). Plaintiff filed an Opposition to the Motion ("New. Opp'n") on January 10, 2014.[4] Dkt. No. 15. The City filed a Reply ("New. Reply") on January 17, 2014. Dkt. No. 18. On February 11, 2014, the Court found these motions suitable for disposition without oral argument. Dkt. No. 24.

LEGAL STANDARD

Under Federal Rule of Civil Procedure ("Rule") 12(b)(6), a party may file a motion to dismiss based on the failure to state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a "probability requirement" but mandates "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008). "[D]ismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008) (internal quotations and citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law").

Even under the liberal pleading standard of Rule 8(a)(2), under which a party is only required to make "a short and plain statement of the claim showing that the pleader is entitled to relief, " a "pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555.) "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively"). The court must be able to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663. "Determining whether a complaint states a plausible claim for relief... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 663-64.

If a Rule 12(b)(6) motion is granted, the "court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and citations omitted).

DISCUSSION

A. Requests for Judicial Notice

Plaintiff requests that the Court take judicial notice of the following documents: (1) a one page "Flyer" prepared by the Newark Chamber of Commerce, which publicized the event, attached as "Exhibit A"; and (2) the webpage of defendant Chamber publicizing the State of the City address as a "Community Event", attached as "Exhibit B." Dkt. No. 15-1. The Court GRANTS Plaintiff's request for judicial notice of these documents as the content of the advertisements is "not subject to reasonable dispute in that it is... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).

Defendants request that the Court take judicial notice of the police report documenting Plaintiff's April 18, 2013 arrest. Req. for Jud. Not., Dkt. 12. Plaintiff joins in the request. The Court DENIES the request to take judicial notice of this exhibit because the contents of police reports or other police records are not proper subjects of judicial notice. See Pina v. Henderson, 752 F.2d 47, 50 (2d Cir. 1985) (holding that the existence and content of a police report are not properly the subject of judicial notice); United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003).

B. Whether the Complaint Fails to Comply with Federal Rule of Civil Procedure 8(a)

The COC Defendants first argue that the Complaint should be stricken for failure to comply with Rule 8. COC Mot. at 4. Particularly, the COC Defendants argue that the causes of action are alleged against all defendants as a group, and therefore fail to give fair notice as to what conduct creates liability for the Chamber or Ashley. Id. at 4-5. The COC Defendants contend that this is especially important where, as here, the factual allegations do not give rise to an inference as to the theories upon which Plaintiff claims Ashley's or the Chamber's liability rests. Id.

Plaintiff counters that he has sufficiently pleaded his theory of liability as to Ashley and the Chamber based on the allegation that Ashley was a state actor and chief policy-maker for the Chamber. COC Opp'n at 3.

Rule 8(a)(2) requires that each claim in a pleading be supported by "a short and plain statement of the claim showing that the pleader is entitled to relief." Under this rule, a claim must contain "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. Instead, to satisfy Rule 8(a)(2), a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Although this standard requires that a claim be "plausible on its face, " it does not require that a complaint contain "detailed factual allegations." Id. at 678, (internal quotation marks omitted).

Here, the Complaint fails to satisfy Rule 8(a)(2)'s pleading standard with regard to the claims against Ashley and the Chamber. Based on Plaintiff's argument in his Opposition, it appears that he is alleging every cause of action against Ashley and the Chamber, based on the theory that Ashley "triggered" the chain of events that led to the constitutional violations. COC Opp'n at 4.

Plaintiff's Complaint does not comply with Rule 8. Instead of providing a simple, short statement of the facts he alleges occurred, the Complaint contains lengthy, duplicative allegations that make his claims difficult to parse. For example, in Paragraph 4, Plaintiff alleges that he was arrested based on a citizen's arrest sworn by Ashley. In Paragraph 14, Plaintiff alleges that City Attorney Benoun "consulted with Ashley" on the removal of Plaintiff and consented to Plaintiff's arrest. In Paragraph 32, Plaintiff alleges that City Manager Becker asked ...


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