United States District Court, N.D. California
Ali Saleem Bey, Plaintiff, Pro se, Oakland, CA.
John Muhammad Bey, Plaintiff, Pro se, Oakland, CA.
ORDER DISMISSING CASE WITH LEAVE TO AMEND Re: Dkt. No. 12
JACQUELINE SCOTT CORLEY, United States Magistrate Judge.
In this First Amended Complaint (" FAC"), Plaintiffs Ali Saleem Bey and John Muhammed Bey, both proceeding in forma pauperis and pro se, allege numerous civil rights violations by the City of Oakland, the Oakland Police Department (" OPD"), various members of the OPD, and a number of " Does." (Dkt. No. 12.) Upon the review required by 28 U.S.C. § 1915(e)(2), the Court previously dismissed Plaintiffs' initial complaint with leave to amend, finding that the allegations failed to state a claim upon which relief could be granted. Bey v. City of Oakland, No. 14-cv-01626-JSC, 2014 WL 4220319, at *1 (N.D. Cal. Aug. 25, 2014) (" Bey I"). Because, upon review, Plaintiffs' FAC fails to cure many of the deficiencies that the Court identified in the initial complaint, the Court DISMISSES Plaintiffs' FAC with leave to amend.
ALLEGATIONS IN THE FIRST AMENDED COMPLAINT
As set forth in the Court's opinion addressing the initial complaint, Plaintiffs are " businessmen, family men and community leaders in the Oakland Black and Muslim community." Bey I, 2014 WL 4220319, at *1. In the FAC, Plaintiffs allege that since January 2002 through the filing of the FAC, the OPD has acted under the color of law to deprive Plaintiffs, and other Black Muslims, of constitutionally protected rights in violation of 42 U.S.C. § 1983. Plaintiffs also appear to allege that during this same time period, the OPD engaged in a conspiracy to deprive them of rights and privileges in violation of 42 U.S.C. § 1985(3). The gravamen of Plaintiffs' FAC appears to be that the OPD has engaged in unlawful racial and religious profiling, as demonstrated in two main ways. First, the FAC includes allegations of discrimination through OPD's general tactics against the Oakland Black Muslim community, which included a later-discredited classification of Plaintiffs as " Domestic Terrorists" and a practice of " gun walking" into the Black Muslim community to facilitate murder within that community. According to Plaintiffs, this discrimination, and the police tactics used, is merely a continuation of a " historic systemic cultural bias" against Oakland's Black Muslim community that first began in the 1970s during an FBI operation dubbed " COINTELPRO." (Dkt. No. 12 at 6.) These allegations, however, do not appear to be related to any of the actual counts of the FAC. Instead, the counts arise out of the second set of allegations, which focus on OPD's investigations into the attempted murder of Plaintiff John Muhammed Bey and the murder of Waajid Bey, a " close associate" of Plaintiffs and fellow member of the Oakland Black Muslim community. According to Plaintiffs, OPD's treatment of their requests for internal reviews of those investigations were either ignored altogether or improperly conducted due to conflicts of interest, all out of discriminatory animus. (Id. at 8-9.)
Plaintiffs now name as Defendants: the City of Oakland; the City of Oakland Police Department; OPD Chief Sean Whent; OPD Deputy Chief of Police David Downing; OPD Officers Ersie Joyner, Derwin Longmire, and Oliver Cunningham; Robert Warshaw of Police Performance Solutions llc, and Does 1-101.
The eight counts of the complaint are all brought under 42 U.S.C. § § 1983 and 1985, and they all allege " a systemic Pattern and Practice of Racial and Religious Discrimination against plaintiffs, including obstruction of justice, suppression of evidence, failure to investigate resulting in civil rights violation of equal protection and equal [ ] treatment against Plaintiffs."
In Count One, Plaintiffs contend that Defendants have failed to investigate sufficiently and have obstructed the proper investigation of OPD internal affairs complaints due to conflicts of interest and bias against Black Muslims. The conflict alleged appears to be that Plaintiffs named in their internal affairs complaints all OPD officers in the Criminal Investigation Division's Chain of Command, including OPD Chief Sean Whent, and neither Whent nor the officers he appointed to manage the internal investigations recused themselves. Plaintiffs allege that Officer Cunningham rejected evidence that Plaintiffs proffered in support of their complaints and contend that another officer's statement that OPD has no authority to question witnesses other than current OPD personnel demonstrates bias. In support of this count, Plaintiffs further allege that OPD opens and conducts conflict of interest investigations for non-Black and non-Muslim complainants, so the failure in this instance is motived by discriminatory animus.
Five counts arise out of a court-approved consent decree--referred to as a " Negotiated Settlement Agreement" or " NSA" throughout the complaint--in a prior police misconduct case in this District, Allen v. City of Oakland, No. 00-4599-TEH. In Count Two, Plaintiffs contend that OPD's failure to resolve Plaintiffs' IAD complaint failed to comply with the consent decree's requirement that OPD reform its Internal Affairs Division. Although the claim appears to be brought against all Defendants, Plaintiffs note that individual defendants Cunningham and Whent are the ones who failed to resolve the claims or make findings against fellow officers. Counts Three, Four, and Seven similarly allege that OPD's treatment of Plaintiffs' IAD complaints failed to comply with terms of the consent decree from the Allen case by not retaining notes and documents related to the IAD complaints at issue and not " identifying and replacing IAD investigators with an obvious and or 'perceived' conflict of interest." (Dkt. No. 12 at 15.) In these counts, Plaintiffs contend that the consent decree requires IAD investigators to record interviews with officers accused of misconduct at complainants' request, but Defendant Cunningham never advised Plaintiffs of that right, and that the City's failure to act on these violations despite their knowledge--essentially, deliberate indifference by any other name--constitutes violations of Sections 1983 and 1985. In Count Eight, also brought against all Defendants, Plaintiffs fault Compliance Director Warshaw for failing to report the problems identified in Plaintiffs' IAD complaints to Judge Henderson in the Allen case, which--according to Plaintiffs--the consent decree required.
Counts Five and Six relate to OPD's treatment of evidence that Plaintiffs submitted in support of their IAD complaints. These counts are also brought against all defendants, though Plaintiffs specifically fault Defendant Cunningham for rejecting certain evidence relating to an internal affairs complaint in the first instance, and Defendants Warshaw and the City of Oakland for ignoring Plaintiffs' complaint about that rejection. Plaintiffs further fault Cunningham for " suppress[ing]" evidence of conflicts of interest, which led to the IAD's failure to investigate Plaintiffs' 2007 IAD complaint. At bottom, Plaintiffs contend that the officers' conduct stemmed from the OPD's general policy and practice of hatred towards Black Muslims.
Plaintiffs seek (1) an independent federal investigation of all officers named in Plaintiffs' IAD complaints; (2) placement of the OPD into a federal receivership to be overseen and managed by the DOJ Civil Rights Division; (3) removal of the OPD Chief of Police; (4) an apology and admission regarding the OPD's use of improper " COINTELPRO" tactics and purposeful fomentation of black-on-black murder; and (5) compensation.
The Court must dismiss an in forma pauperis (" IFP") complaint before service of process if it is frivolous, fails to state a claim, or contains a complete defense to the action on its face. 28 U.S.C. § 1915(e)(2). The Court retains discretion over the terms of dismissal, including whether to grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Because this is a pro se civil rights case, the Court must notify Plaintiffs of the deficiencies in the complaint and provide an opportunity to amend prior to dismissal, unless it is completely clear that the deficiencies of the complaint cannot be cured. ...