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Johnson v. City of Atwater

United States District Court, E.D. California

April 18, 2017

RICHARD DEAN JOHNSON, et al., Plaintiffs,
v.
CITY OF ATWATER, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DISMISS (ECF NOS. 19, 22, 23)

         Currently before the Court is Defendants City of Atwater, Frank Pietro, Tyna Lamison, Samuel Joseph, John Smothers, David Walker, Don Wisdom, Robert Vargas, Dayton Snyder, Ken Lee, Fabian Velasquez, and Adolfo Morales' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The matter was referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72.

         I. BACKGROUND

         Since 2004, Plaintiffs Richard Johnson and Lori Johnson (“Plaintiffs”) have resided at 1675 Drakeley Avenue in Atwater, California. (First Am. Compl. ¶ 2.) Plaintiffs have been engaged in a long standing dispute over water service with the City of Atwater. (First Am. Compl. ¶ 10.) Plaintiff Richard Johnson went to City Hall in October 2015 to discuss their water bill which was allegedly several thousand dollars. (First Am. Compl. ¶ 11.) Defendant Lamison came to the front window and began yelling at Plaintiff Richard Johnson accusing him of being off his medication. (First Am. Compl. ¶ 11.) Defendant Lamison had Plaintiff Richard Johnson arrested for disturbing the peace. (First Am. Compl. ¶ 11.) Plaintiff Richard Johnson was handcuffed by unknown police officers and paraded through City Hall. (First Am. Compl. ¶ 11.)

         Plaintiff Richard Johnson was placed in a holding cell for several hours. (First Am. Compl. ¶ 11.) While Plaintiff was in the holding cell, unknown City employees, at the direction of Defendant Pietro, went to Plaintiffs' residence and removed a piece of pipe that supplied water to the residence, stopping the water service, and leaving the residence without water. (First Am. Compl. ¶ 11.)

         About October 6, 2015, Plaintiff's placed signs in their front yard which mentioned Defendants Pietro and Lamison by name in protest of the City's actions. (First Am. Compl. ¶ 12.) The signs were visible from the public right-of-way. (First Am. Compl. ¶ 12.) Defendant Velasquez, who is the Code Enforcement Officer for the City, ordered Plaintiffs to remove the signs. (First Am. Compl. ¶ 13.) Plaintiffs refused to remove the signs and Defendant Velasquez informed them that the signs were slanderous and could result in a civil action against Plaintiffs if they were not removed; and if not removed, Defendant Velasquez would begin the uninhabitable dwelling procedure on their residence. (First Am. Compl. ¶ 13.)

         On November 25, 2015, Defendants Velasquez and Vargas arrived at Plaintiffs' residence and told Plaintiff Lori Johnson that the signs must be immediately removed and the hose that was procuring water from their neighbor must be disconnected. (First Am. Compl. ¶ 14.) Plaintiff Lori Johnson refused to remove the signs and asked for a meeting with Defendant Pietro and other City personnel to resolve the water issue. (First Am. Compl. ¶ 14.) Defendant Velasquez informed Plaintiff Lori Johnson that the signs violated the municipal code and if they were not removed he would have them seized and would issue a citation for violation of the municipal code and theft of water. (First Am. Compl. ¶ 15.) Plaintiff Lori Johnson asserted that the signs were within her First Amendment rights; and Defendant Vargas requested that Plaintiff Lori Johnson remove the names from the signs. (First Am. Compl. ¶ 15.) Plaintiff Lori Johnson removed the names from the signs. (First Am. Compl. ¶ 15.)

         On November 30, 2015, Defendants Vargas, Velasquez, Snyder, Smothers, Walker, Wisdom, Lee, Morales, and other City personnel came to Plaintiffs' residence to seize the signs and issue a citation for violation of the municipal code. (First Am. Compl. ¶ 16.) Plaintiff Lori Johnson asked for the names and badge numbers of the individuals but they refused to provide the information requested. (First Am. Compl. ¶ 16.) Plaintiff Lori Johnson called the paramedics because of an anxiety attack that was brought on by the removal of the signs. (First Am. Compl. ¶ 17.) Plaintiff Richard Johnson tried to prevent the signs from being removed and was arrested for assault and battery.[1] (First Am. Compl. ¶ 17.) Plaintiff Richard Johnson tried to pull the signs up himself and Defendant Vargas grabbed his right wrist and twisted his arm behind his back. (First Am. Compl. ¶ 17.) Defendant Snyder came to assist Defendant Vargas and they knocked Plaintiff Richard Johnson to the ground and placed him in handcuffs. (First Am. Compl. ¶ 17.) Plaintiff Lori Snyder was upset at watching the force used on her husband. (First Am. Compl. ¶ 17.)

         When Plaintiff Lori Johnson tried to get to her husband, she was hit in the shoulder causing her to drop her cell phone which broke. (First Am. Compl. ¶ 17.) The paramedics were prevented from assisting Plaintiff Lori Johnson for several minutes. (First Am. Compl. ¶ 17.) After Plaintiff Richard Johnson was handcuffed, the officers removed the protest signs, ripping and breaking them in the process. (First Am. Compl. ¶ 18.)

         Plaintiff contends that the City Municipal Code section 17.69.660 required notice of the violation to be given to the property owner and that the notice contain information about the right to appeal. (First Am. Compl. ¶ 19.) The City did not send Plaintiffs notice of the violation until December 18, 2015, three weeks after the signs were removed. (First Am. Compl. ¶ 19.) On receipt of notice of the violation, Plaintiffs filed a timely appeal. (First Am. Compl. ¶ 20.) The appeal was heard on January 20, 2016, by Hearing Officer L. Carmen Ramirez. (First Am. Compl. ¶ 21.) The hearing officer determined that the City's Municipal Code created a constitutionally impermissible content focused inquiry and the late notice of abatement must be cancelled.[2] (First Am. Compl. ¶ 22.)

         After the signs were seized, Plaintiff's alternate water source was interrupted, leaving Plaintiffs' residence without water and the uninhabitable dwelling process began. (First Am. Compl. ¶ 24.) Plaintiffs were told if they moved out of their house and rented it the water would be turned back on. (First Am. Compl. ¶ 24.) Plaintiffs did not have the funds to pay the water bill in full and moved out of their house for 31 days. (First Am. Compl. ¶ 24.) Plaintiffs moved out of the house, renting it out, and the City turned the water back on. (First Am. Compl. ¶ 24.) After hearing that Plaintiffs were speaking with legal counsel, Defendant Pietro met with Plaintiffs and allowed them to return to their home with the water turned on. (First Am. Compl. ¶ 24.)

         When Plaintiffs moved back in the house, they discovered that the renters had planted several marijuana plants in their backyard. (First Am. Compl. ¶ 25.) Plaintiff Lori Johnson discussed this with Defendant Lee who asked if she really wanted to get rid of the plants because marijuana was almost legal. (First Am. Compl. ¶ 25.) Defendant Lee later apologized to Plaintiff Lori Johnson for the comment. (First Am. Compl. ¶ 25.)

         At some time, Defendant Pietro gave Plaintiffs $1, 750 cash with no explanation. (First Am. Compl. ¶ 12.) Plaintiff Lori Johnson inquired of the City where the money came from and what it was for, but did not receive a satisfactory response. (First Am. Compl. ¶ 26.)

         Plaintiffs Richard Johnson and Lori Johnson filed this action in the Superior Court for the County of Merced on September 20, 2016, alleging violations of the Fourth Amendment against Defendant Lamison and Doe defendants based on Plaintiff Richard Johnson's arrest on October 6, 2015; violations of the First, Fourth, and Fourteenth Amendments, and California Civil Code § 52.1 against all defendants except Lamison based on the November 30, 2015 incident; and false arrest and false imprisonment, intentional infliction of emotional distress, and negligence against all defendants.

         On October 28, 2016, this action was removed by Defendants to the Eastern District of California. Defendants City of Atwater, Pietro, Lamison, Joseph, Walker, Wisdom, Vargas, Snyder, Lee, Velasquez, and Morales filed an answer on November 20, 2016. Defendant Smothers filed an answer on January 25, 2017. On February 28, 2017, Plaintiffs filed a first amended complaint. Defendants filed a motion to dismiss on March 17, 2017. Plaintiffs filed an opposition to the motion to dismiss on April 4, 2017. On April 12, 2017, Defendants filed a reply.

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In assessing the sufficiency of a complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 U.S. at 678-79. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.

         In deciding whether a complaint states a claim, the Ninth Circuit has found that two principles apply. First, to be entitled to the presumption of truth the allegations in the complaint “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.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Second, so that it is not unfair to require the defendant to be subjected to the expenses associated with discovery and continued litigation, the factual allegations of the complaint, which are taken as true, must plausibly suggest an entitlement to relief. Starr, 652 F.3d at 1216.

         III. DISCUSSION

         Defendants move to dismiss pursuant to Rule 12(b)(6) on the ground that the complaint fails to allege sufficient facts to state any cognizable claims and they are entitled to qualified immunity for the third cause of action. Plaintiffs respond that the allegations contained in the complaint contain sufficient factual detail to survive a motion to dismiss.

         Section 1983 provides a cause of action for the violation of a plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There is no respondeat superior liability under section 1983, and therefore, each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. Further, a local government unit may not be held responsible for the acts of its employees under a respondeat superior theory of liability. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Rather, a local government unit may only be held liable if it inflicts the injury complained of through a policy or custom. Waggy v. Spokane County Washington, 594 F.3d 707, 713 (9th Cir. 2010).

         The parties both argue facts outside of the first amended complaint to support their position as to whether a claim has been stated in the first amended complaint. However, in deciding a Rule 12(b)(6) motion, the Court may not look beyond the complaint without converting the motion to a motion for summary judgment. Ranch Realty, Inc. v. DC Ranch Realty, LLC, 614 F.Supp.2d 983, 987 (D. Ariz. 2007). The Court considers whether a claim has been stated based upon the allegations set forth in the first amended complaint.[3]

         Based on review of the first amended complaint, the allegations include facts that could potentially lead to claims that have not been pled in the first amended complaint. The plaintiff is the master of his complaint and can choose which claims he will pursue in this action and which he chooses not to pursue. Additionally, Plaintiffs in this action are represented by counsel and, therefore, the Court does not liberally construe the complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (Pro se complaints are “to be liberally construed, ” and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]”). Therefore, the Court finds that the claims being pursued in this action are those specifically identified in the causes of action set out within the first amended complaint.

         A. Defendant Liability

         To state a claim under section 1983, a plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. To state a claim against a defendant, the plaintiff must plead that the official has violated the Constitution through his own individual actions. Iqbal, 556 U.S. at 676; OSU Student Alliance v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012). In other words, to state a claim for relief under section 1983, Plaintiffs must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiffs' federal rights.

         1. Monell Liability

         Plaintiffs allege that the City had customs, policies, usages, or practices “1) for using excessive/unreasonable force on people; 2) for unlawfully seizing people; 3) for unlawfully seizing private property; 4) for falsely imprisoning people; 5) for interfering with people's and/or otherwise violating people's constitutionally protected right to free speech; 9) [sic] for interfering with people's rights to remain in their private residences; 10) for denying people equal protection under the laws, especially based on mental health and/or freedom of speech); 11) for interferring [sic] with people's rights to mobilize support to bring about change in government policies and procedures.” (First Am. Compl. at ¶ 7.) Plaintiffs also allege that the City was negligent by failing to exercise reasonable diligence in serving the notice of violation prior to seizing Plaintiffs' signs, failing to train its employees, failing to supervise Defendant Lamison, and failing to follow its own regulations. (First Am. Compl. at ¶¶ 89-92.) The Police Department was negligent because it had a duty to interview any alleged victim prior to handcuffing and restraining Plaintiff Richard Johnson, and failing to confirm events with the alleged victim before arresting a suspect. (First Am. Compl. at ¶¶ 93-94.)

         First, under Monell, 436 U.S. 658, “a municipality cannot be held liable under § 1983 solely because it employs a tortfeasor . . . in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” A municipality can only be held liable for injuries caused by the execution of its policy or custom or by those whose edicts or acts may fairly be said to represent official policy. Id. at 694. “A plaintiff may also establish municipal liability by demonstrating that (1) the constitutional tort was the result of a ‘longstanding practice or custom which constitutes the standard operating procedure of the local government entity;' (2) the tortfeasor was an official whose acts fairly represent official policy such that the challenged action constituted official policy; or (3) an official with final policy-making authority ‘delegated that authority to, or ratified the decision of, a subordinate.' ” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (quoting Ulrich v. City & County of San Francisco, 308 F.3d 968, 984-85 (9th Cir.2002)).

         In this action, other than the allegation that the municipal code was found to be an unconstitutionally content based restriction (First Am. Compl. at ¶ 22), the complaint is devoid of any allegations to support a custom, policy, or practice by the City or the Police Department. A single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom. Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) holding modified by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). Plaintiff has alleged no facts by which the Court can infer that the City had a longstanding custom or policy of using unreasonable force, unlawfully seizing people or property, falsely imprisoning people, interfering with an individual's right to remain in their home, or denying equal protection of the laws.

         While Plaintiffs argue that the municipal code establishes that the City Manager establishes policy for the City, Plaintiffs did not include such allegations in the first amended complaint. Further, Plaintiffs' conclusory allegations that Defendant Pietro directed and ratified the numerous events that are complained of in the complaint are not entitled to the presumption of truth. Iqbal, 556 U.S. at 681; Twombly, 550 U.S. at 555. Plaintiffs allege that Defendant Pietro was Chief of Police and stepped down on August 8, 2016 after the alleged events took place and continues to act as City Manager. (First Am. Compl. at ¶ 4.) After meeting with Pietro, he let them move back into their home and turned their water back on. (First Am. Compl. at ¶ 24.) At some point, Pietro gave Plaintiffs $1, 750 cash for which they have received no satisfactory explanation. (First Am. Compl. at ¶ 26.) These factual allegations are insufficient to establish that Defendant Pietro knew of, much less directed and ratified, the events alleged in the complaint. The allegations in the complaint seek to hold Defendant Pietro liable due to his position as City Manager and Chief of Police, however, there is no supervisory liability under section 1983. Iqbal, 556 U.S. at 677.

         Moreover, while unclear, it does not appear that Plaintiffs are challenging the municipal code as being an impermissible content based restriction on speech but are seeking damages against the defendants who enforced the regulation. If Plaintiffs seek to challenge the municipal code or are bringing a Monell claim, they need to clearly set forth the basis of the claim in a separate cause of action identifies the specific policy, custom, or procedure and the factual basis to hold the County liable.[4]

         The Court finds that Plaintiffs have failed to state a cognizable Monell claim.

         2. Defendant Joseph

         Plaintiffs name Samuel Joseph as a defendant in the action. (First Am. Compl. ¶ 5.) However, the complaint is devoid of any factual allegations against Defendant Joseph. Plaintiffs have failed to state a cognizable claim against Defendant Joseph. The Court recommends that Defendants' motion to dismiss be granted as to Defendant Joseph.

         B. First Cause of Action

         Plaintiffs' first cause of action is brought against Defendant Lamison and five Doe defendants alleging unreasonable search and seizure in violation of the Fourth Amendment. Plaintiffs allege that there was no probable cause to arrest Plaintiff Richard Johnson. Defendants move to dismiss the first cause of action arguing that Defendant Lamison does not have the authority to arrest Plaintiff and that Plaintiff fails to include allegations that he was not disturbing the peace because to do so would be a violation of Rule 11. Plaintiffs do not address the first cause of action in their opposition. Defendants respond that by failing to address the first cause of action Plaintiffs have conceded that it fails to state a claim.

         “The Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .' ” Terry v. Ohio, 392 U.S. 1, 8 (1968). The Constitution does not forbid all searches and seizures, but unreasonable searches and seizures. Terry, 392 U.S. at 9.

         It is well established that a claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, if the arrest was made without probable cause or other justification. Dubner v. City & Cty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001); Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011). “Probable cause exists when, under the totality of the circumstances known to the arresting officers (or within the knowledge of the other officers at the scene), a prudent person would believe the suspect had committed a crime.” Dubner, 266 F.3d at 966.

         California makes it unlawful to “unlawfully fight[] in a public place or challenge[] another person in a public place to fight[, ]” “maliciously and willfully disturb[] another person by loud and unreasonable noise[, ] or “use[] offensive words in a public place which are inherently likely to provoke an immediate violent reaction.” Cal. Pen. Code § 415. Plaintiff alleges that he when he went to City Hall to discuss his utility bill, Defendant Lamison came to the front window and began accusing him of being off of his medication, and then had him arrested for disturbing the peace.

         While Defendants argue that Plaintiff Richard Johnson cannot state that he was not acting belligerently on the date of his arrest because it would violate Rule 11, Plaintiff alleges that at the time that he was arrested he was acting lawfully. (First Am. Compl. at ¶ 35.) In assessing the sufficiency of a complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 U.S. at 678-79. Plaintiff Richard Johnson's allegation that he was acting lawfully at the time of his arrest is sufficient to state a plausible claim against the Doe defendants for illegal seizure in violation of the Fourth Amendment.

         However, Defendant Lamison is the assistant to the Chief of Police. (Compl. at ¶ 11.) Plaintiff Richard Johnson asserts that he was handcuffed and taken away by unidentified City of Atwater police officers. Plaintiffs' conclusory allegation that Defendant Lamison “had him arrested” is insufficient to state a cognizable claim that Defendant Lamison violated the Fourth Amendment.

         The Court finds that Plaintiff has failed to state a cognizable claim under the Fourth Amendment against Defendant Lamison. However, the complaint is sufficient to state a cognizable claim against the five Doe defendants for illegal seizure in violation of the Fourth Amendment. The Court recommends that Defendants' motion to dismiss the first cause of action ...


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