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Clark v. County of Sacramento

United States District Court, E.D. California

July 25, 2016

COUNTY OF SACRAMENTO, et al., Defendants.



         This matter is before the court on defendants’ January 8, 2016 motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the motion must be granted in part and denied in part.


         Plaintiff is proceeding in form pauperis on a complaint filed on June 5, 2015.[1] ECF No. 1. Plaintiff’s complaint alleges, in relevant part, that on June 6, 2013, she was stranded on a bank of the American River. Id. at 3.[2] Defendants Nelson and Kemp, park rangers with the Sacramento County Parks Department, responded to the scene along with emergency rescue personnel. Id. Without plaintiff’s consent, defendant Nelson searched plaintiff, confiscated and discarded her medical marijuana. Id. Plaintiff objected and her ensuing interactions with Nelson and Kemp resulted in her arrest. Id.

         Plaintiff was then placed in the back of a police vehicle. Id. Plaintiff informed defendants Nelson and Kemp that she suffered from claustrophobia. Id. Plaintiff asked that the rear window be lowered to alleviate her claustrophobia, defendants refused, and plaintiff broke the window of the police vehicle. Id.

         Plaintiff was then taken to jail where defendants Nelson “and/or” Kemp applied plaintiff’s handcuffs “too tightly.” Id. at 4. Thereafter, defendant Nelson “pushed” plaintiff onto a bench, causing plaintiff’s leg to make contact with defendant Nelson. Id. Thereafter, defendant Nelson grabbed plaintiff by the throat and choked her. Id.

         Defendants filed the pending motion to dismiss on January 8, 2016. ECF No. 11. After plaintiff failed to file timely opposition, the undersigned issued plaintiff an order to show cause. ECF No. 13. Plaintiff filed a response on February 18, 2016. ECF No. 14. Defendants filed a reply on February 24, 2016, ECF No. 15, along with objections, ECF No. 16.


         I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required 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 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

         In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff’s complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).


         I. First Amendment Retaliation

         Defendants’ motion seeks dismissal of the complaint’s claim for retaliation in violation of the First Amendment. In this regard, defendants argue that plaintiff’s “private objections to being searched and/or arrested do not bear the hallmarks of ‘protected speech, ” and that plaintiff’s “arrest was NOT motivated by retaliatory animus.” ECF No. 11 at 7 (emphasis in original).

         “‘[T]o demonstrate a First Amendment violation, a plaintiff must provide evidence showing that ‘by his actions the defendant deterred or chilled the plaintiff’s political speech and such deterrence was a substantial or motivating factor in the defendant’s conduct.’” Lacey v. Maricopa County, 693 F.3d 896, 916 (9th Cir. 2012) (quoting Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999)). “The Supreme Court has consistently held that the First Amendment protects verbal criticism, challenges, and profanity directed at police officers unless the speech is “‘shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.’” United States v. Poocha, 259 F.3d 1077, 1080 (9th Cir. 2001) (quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987)); see also Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995) (“Even when crass and inarticulate, verbal challenges to the police are protected.”); Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir. 1990) (“The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state.”). Moreover, the Ninth Circuit “has recognized that a retaliatory police action such as an arrest or search and seizure would chill a person of ordinary firmness from engaging in future First Amendment activity.” Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013).

         Here, plaintiff’s complaint alleges that after she objected to defendant Nelson’s illegal search and seizure, defendants Nelson and Kemp arrested her. ECF No. 1 at 3. Viewed in the light most favorable to plaintiff, these allegations state a claim for retaliation in violation of the First Amendment. See Ford, 706 F.3d at 1193 (“Ford’s criticism of the police for what he perceived to be an unlawful and racially motivated traffic stop falls squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech is categorically prohibited by the Constitution.”); Duran, 904 F.2d at 1378 (“Inarticulate and crude as Duran’s conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-in. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech-such as stopping or hassling the speaker-is categorically prohibited by the Constitution.”).

         Accordingly, it is recommended that defendants’ motion to dismiss be denied as to this claim.

         II. False Arrest

         Defendants’ motion also seeks dismissal of the complaint’s claim for false arrest on two grounds. First, defendants argue that plaintiff’s false arrest claim is barred under H ...

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