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Martinez v. Pennington

United States District Court, E.D. California

August 8, 2016

DESIREE MARTINEZ, Plaintiff,
v.
KYLE PENNINGTON; KIM PENNINGTON; CONNIE PENNINGTON; KRISTINA HERSHBERGER; JESUS SANTILLAN; CHANNON HIGH; THE CITY OF CLOVIS; ANGELA YAMBUPAH; RALPH SALAZAR; FRED SANDERS; THE CITY OF SANGER; AND DOES 1 through 20, Defendants.

          ORDER DENYING DEFENDANTS’, THE CITY OF CLOVIS, THE CITY OF SANGER, KRISTINA HERSHBERGER, JESUS SANTILLAN, CHANNON HIGH, ANGELA YAMBUPAH, RALPH SALAZAR, AND FRED SANDERS, MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT

          DHNA MENDEZ, UN ITED STATES DISTRICT JUDGE

         Eight of the eleven Defendants in this case move to dismiss portions of Plaintiff Desiree Martinez’s (“Plaintiff”) Second Amended Complaint (“SAC”) (Doc. #50).[1] Plaintiff opposes the motion (Doc. #52).

         I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

         The Court takes the facts alleged by Plaintiff as true for purposes of this motion. Plaintiff was in a relationship with Kyle Pennington (“KP”), an officer with the Clovis Police Department (“CPD”). SAC ¶¶ 4, 16. Throughout the relationship, KP physically and emotionally abused Plaintiff. Id. ¶ 16. On May 2, 2013, Plaintiff called the police to report that KP had threatened to harm her. Id. ¶ 18(a). CPD officers Kristina Hershberger (“Hershberger”) and Jesus Santillan (“Santillan”) responded to Plaintiff’s call. Id. The officers asked Plaintiff questions, but did not separate KP and Plaintiff during the questioning. Id. Hershberger and Santillan did not arrest KP. Id. KP physically and emotionally abused Plaintiff after Hershberger and Santillan left. Id. ¶ 18(b).

         About three weeks later, Plaintiff contacted the CPD to tell an officer that KP was abusing her. Id. ¶ 18(c). The officer did not arrest KP or tell Plaintiff about her rights. Id. Eight days later, Plaintiff called the CPD anonymously. Id. ¶ 18(f). A few days after that, defendant Channon High (“High”) called and informed KP that Plaintiff had called the CPD to report abuse by KP. Id. ¶ 18(g). After High’s call to KP, KP severely abused Plaintiff. Id. ¶ 18(h).

         At some point, Plaintiff and KP moved from Clovis to Sanger. Id. On June 4, 2013, a neighbor called 911 to report that KP was abusing Plaintiff. Id. ¶ 18(i). Officers Angela Yambupah (“Yambupah”) and Ralph Salazar (“Salazar”) and Sgt. Fred Sanders (“Sanders”) of the Sanger Police Department (“SPD”) responded to the 911 calls. Id. Plaintiff had “many obvious injuries.” Id. The SPD officers did not separate Plaintiff from KP to question Plaintiff about the abuse. Id. Plaintiff, feeling intimidated, stated that she did not want to press charges. Id. The officers left without arresting KP. Id. KP beat and sexually assaulted Plaintiff later that night. Id. Plaintiff contacted both the CPD and SPD. Id. ¶ 18(j). An arrest warrant and a restraining order were issued against KP on June 5, 2013. Id. ¶ 18(j)-(m).

         Though there was a restraining order requiring KP to stay away from Plaintiff, KP continued to live with Plaintiff. Id. ¶ 18(n). Between June and August 2013, KP physically, sexually, and emotionally abused Plaintiff. Id. ¶ 18(k)-(1). Plaintiff reported KP’s violations of the restraining order to the CPD. Id. ¶ 18(m). High and another unidentified records clerk for the CPD alerted KP whenever Plaintiff called the CPD. Id. When KP found out about Plaintiff’s calls to the CPD, KP would physically abuse Plaintiff. Id. From June through early September 2013, KP was never arrested for violating the restraining order or abusing Plaintiff. Id. ¶ 18(n). KP was finally arrested on September 18, 2013. Id. ¶ 18(m). KP and Plaintiff moved away from each other, but KP continued to contact Plaintiff in violation of the restraining order. Id. ¶ 18(n)-(o).

         KP was eventually charged with domestic violence, threats, false imprisonment, violating a restraining order, and more. Id. ¶ 18(j). A jury convicted KP of violating the restraining order but were unable to reach a unanimous verdict on the other charges. Id. ¶ 19. KP pled guilty to one domestic violence charge to avoid a retrial. Id.

         Plaintiff sued KP, KP’s parents Kim and Connie Pennington, the cities of Clovis and Sanger, and High, Hershberger, Santillan, Yambupah, Salazar, and Sanders (Doc. #1). Following the Court’s January 6, 2016 Order granting in part and denying in part Defendants’ motion to dismiss, Plaintiff filed her SAC (Doc. #44).

         Defendants Clovis, Sanger, High, Hershberger, Santillan, Yambupah, Salazar, and Sanders now move to dismiss Plaintiff’s first and second causes of action (Doc. #50).

         II. OPINION

         The only substantive addition to Plaintiff’s complaint is paragraph 22. That paragraph alleges, among other things, that “Clovis and Sanger fail to require their police officers to abide by the Federal Violence Against Women Act, or the corresponding California laws.” SAC ¶ 22. It also alleges “on information and belief” that police officers in Clovis and Sanger are trained and permitted to enforce domestic violence laws differently than other laws. Id. Defendants argue that despite the addition of paragraph 22 to Plaintiff’s complaint, Plaintiff fails to allege equal protection violations against all Defendants and fails to allege a due process claim against Sanger. MTD at 5-7.

         A. Plaintiff’s Equal Protection Claims Against Clovis and Sanger

         To allege a § 1983 claim against a city, a plaintiff must state facts to show that the city had a custom or policy that caused the plaintiff’s constitutional injury. Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978). A “policy or custom” under Monell is a “longstanding practice . . . which constitutes the ‘standard operating procedure’ of the local government entity.” Ulrich v. City & Cty. of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002). “[T]he complaint must allege the policy, as well as its causal relationship ...


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