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Gawf v. Leist

United States District Court, N.D. California, San Jose Division

February 11, 2015

DAVID GAWF, Plaintiff,
SHERIFF'S DEPUTY JASON LEIST, in his official and individual capacity; SHERIFF'S DEPUTY THOMAS KEYLON, in his official and individual capacity; SHERIFF'S DEPUTY HERBERT (aka KIP) BOWEN, in his official and individual capacity; SAN BENITO COUNTY SHERIFF DEPARTMENT, in its official and municipal capacity; COUNTY OF SAN BENITO, in its corporate and municipal capacity; and DOES 1-25, Defendants.


HOWARD R. LLOYD, Magistrate Judge.

Pro se plaintiff David Gawf sues for alleged violation of his civil rights stemming from his 2010 arrest for domestic violence. Pursuant to Fed.R.Civ.P. 12(b)(6), defendants move to dismiss plaintiff's Third Amended Complaint (TAC).[1] Alternatively, they move for a more definite statement under Fed.R.Civ.P. 12(e). Upon consideration of the moving and responding papers, as well as the arguments presented at the motion hearing, the court grants in part and denies in part the motion to dismiss and denies the alternate request for a more definite statement.[2]


The following background facts are drawn from the allegations of the TAC which, solely for purposes of resolving the instant motion, are assumed to be true:

On the night of December 16, 2010, Gawf, his girlfriend (Christine Morikawa), and a friend (Daniel Jeske) visited a restaurant in San Jose to watch a football game. Because Gawf and Morikawa had both been drinking, Jeske drove plaintiff's car on the way home.

At some point, Gawf and Morikawa began fighting in the car. In his TAC, plaintiff now says that he immediately fell asleep in the backseat of the car and that Morikawa lunged at him from the front seat and began attacking him for no reason. He asked Jeske to pull over so that he could get out. Jeske pulled over alongside Highway 101. Gawf exited the vehicle and ran into the bushes.

Meanwhile, defendant Leist pulled up to the car to find out what happened. Gawf then emerged from the bushes with his hands in the air. Leist handcuffed him, told him he was being detained, and placed him in the back of the police car. At some point during this encounter, defendants Keylon and Bowen pulled up behind Leist.

Morikawa initially told Leist that she could not remember what happened. Nevertheless, she later stated that she and Gawf got into an argument and "hit each other" when plaintiff thought that she stole his wallet. (TAC, Ex. 14 (Morikawa Statement)). Additionally, she said that Gawf started kicking the back of her seat as she tried to calm him down; that Gawf "attacked [her] from the backseat, " and she then "hit him and [Gawf] immediately wanted out of the car." (Id.). The TAC alleges that Morikawa was extremely drunk and that her memory was impaired. When Leist asked for his side of the story, Gawf replied, "I plead the Fifth." (TAC ¶ 18). Leist then allegedly slammed the police car door and said, "He's not cooperating, tow the car." (Id.).

The TAC goes on to allege that Jeske asked if he could take the car to drive himself and Morikawa home. Defendants reportedly said that they asked Gawf if Jeske could take the car home, but Gawf said no. Plaintiff claims that he was never actually asked if Jeske could take his car home and that defendant Bowen arranged for the tow, even though Jeske was sober and no one was cited for any traffic violations.

Meanwhile, defendant Keylon reportedly drove Jeske and Morikawa to a gas station. But, when the station owner refused to have them dropped off there, Keylon drove them to another gas station (allegedly far from home) and then left.

Gawf was taken to the San Benito County Jail and booked for felony domestic violence under California Penal Code § 273.5(a). He was released twelve hours later when his father posted bail. The County District Attorney later brought charges for assault and battery and for being drunk in public. The case eventually was dismissed before trial.

In a statement appended to the TAC, Morikawa now says that she sustained no injuries whatsoever on the night in question. (TAC, Ex. 10). And, Gawf claims that the marks on Morikawa's face in photos taken at the scene are not injuries, but merely smeared mascara. The TAC alleges that Gawf, on the other hand, had visible scratches on his face and neck, a split upper lip, as well as defensive wounds on his hands.

Leist's incident report, which is appended to the TAC, notes that Morikawa said she hit plaintiff and that Jeske stated that, because he was driving, he did not see anything when asked if he saw Gawf hit Morikawa. Plaintiff further asserts that the report does not say that Morikawa sustained any injuries, but notes that plaintiff had blood and scratches on his face and neck area. The TAC goes on to allege that, after plaintiff lodged a complaint with the San Benito County Sheriff's Department, the County's own investigator concluded that Leist's report lacked sufficient detail to support an arrest for domestic violence.

Gawf filed this lawsuit under 42 U.S.C. § 1983, seeking redress for the alleged violation of his federal constitutional rights. He also asserts a number of state law claims for relief. In sum, he contends that he never should have been arrested in the first place; and, if defendants were going to arrest anyone for domestic violence, Gawf says it should have been Morikawa.

Defendants moved to dismiss the original complaint pursuant to Fed.R.Civ.P. 12(b)(6), arguing that Gawf failed to state a claim upon which relief could be granted. That motion was mooted by Gawf's First Amended Complaint (FAC) filed pursuant to Fed.R.Civ.P. 15(a)(1)(B).

The court subsequently granted defendants' motion to dismiss the FAC with leave to amend as to some claims. The court dismissed plaintiff's Fourth Amendment claim with leave to amend. His Eighth Amendment claim was dismissed, albeit plaintiff was given an opportunity to amend to state a claim under the Fourteenth Amendment (Due Process). Gawf's Fifth, Ninth, Thirteenth, and Fourteenth Amendment (Equal Protection) claims were dismissed without leave to amend. The court declined to exercise supplemental jurisdiction over plaintiff's state law claims unless and until he is able to state a viable federal claim for relief; and, those state claims were dismissed without prejudice. Because all of the FAC's claims were dismissed, the court found it unnecessary to address defendants' arguments that they are entitled to qualified immunity.

Before the court issued its order on defendant's motion to dismiss the FAC, plaintiff submitted a proposed Second Amended Complaint (SAC) that he requested leave to file. That request was denied because the SAC was premature and deficient in a number of respects. Plaintiff then filed the currently operative pleading, which he titled his Third Amended Complaint.

Pursuant to Fed.R.Civ.P. 12(b)(6), defendants move to dismiss the TAC, arguing that the amended pleading still fails to state a claim for relief and that they are, in any event, entitled to immunity under federal and state law. Alternatively, defendants request a more definite statement under Fed.R.Civ.P. 12(e). For the reasons stated below, the court grants in part and denies in part the motion to dismiss and denies defendants' motion for a more definite statement.


A motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in the complaint must be taken as true and construed in the light most favorable to the claimant. Id. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Moreover, "the court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." This means that the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted) However, only plausible claims for relief will survive a motion to dismiss. Iqbal, 129 S.Ct. at 1950. A claim is plausible if its factual content permits the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. A plaintiff does not have to provide detailed facts, but the pleading must include "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1949.

Documents appended to the complaint or which properly are the subject of judicial notice may be considered along with the complaint when deciding a Fed.R.Civ.P. 12(b)(6) motion.[3] Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).

While leave to amend generally is granted liberally, the court has discretion to dismiss a claim without leave to amend if amendment would be futile. Rivera v. BAC Home Loans Servicing, L.P., 756 F.Supp.2d 1193, 1997 (N.D. Cal. ...

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