United States District Court, S.D. California
ORDER GRANTING DEFENDANT CHRISTOPHER R. HAYS'S
MOTION TO DISMISS [ECF NO. 21]
Cynthia Bashant United States District Judge.
Melanie Wilson commenced this action against Defendants
Christopher R. Hays and the City of San Diego on May 13,
2016, alleging violations of her civil rights pursuant to 42
U.S.C. § 1983 and Monell v. Department of Social
Services of City of New York, 436 U.S. 658 (1978). This
action arises from an incident in December 2013 where
Plaintiff alleges Hays, a San Diego Police Department Officer
at the time, sexually battered her after giving her a ride
home and then taunted her for an hour and a half. Hays moves
to dismiss Plaintiff's First Amended Complaint on the
ground that the claim against him is time barred by the
statute of limitations. (ECF No. 21.) Plaintiff opposes. (ECF
Court finds this motion suitable for determination on the
papers submitted and without oral argument. See Fed.
R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). For the following
reasons, the Court GRANTS Hays's motion to dismiss.
Diego Police Department (“SDPD”) hired
Christopher R. Hays as a sworn police officer in late 2009 or
early 2010. (First Am. Compl. (“FAC”) ¶ 24,
ECF No. 19.) On December 23, 2013, at approximately 5:12
a.m., Plaintiff was out collecting items for recycling near
the intersection of 50th Street and El Cajon Boulevard in San
Diego, California. (Id. ¶ 38.) Earlier that
morning, Plaintiff fought with her boyfriend, forgot her
glasses, broke her flashlight, and got lost in an unfamiliar
part of town. (Id.) Plaintiff admits she had used
methamphetamine earlier that morning, but claims she was
aware of what was happening around her. (Id.)
around the same time she was collecting items for recycling,
Plaintiff alleges that Hays-who was on duty in his SDPD
uniform and driving a marked patrol car-approached Plaintiff
and asked her what she was doing. (FAC ¶ 38.) Plaintiff
replied that she was collecting items for recycling and
explained to Hays what had happened to her earlier in the
morning. (Id.) Hays offered Plaintiff a courtesy
ride home. (Id.) Plaintiff accepted the offer, and
Hays drove her to the address where she was staying.
they arrived at the address, Plaintiff exited the car, and
Hays immediately informed her that he needed to search her.
(FAC ¶ 39.) Plaintiff consented to the search, despite
Hays's lack of probable cause to conduct a search.
(Id.) Hays, contrary to SDPD policy and procedure,
did not then conduct a quick “pat down.”
(Id.) Rather, he allegedly touched Plaintiff
“in a continuous motion, ” including
“touching her breasts and vagina” and
“lingering over every part of her body” for
approximately three minutes. (Id.)
the search, Hays remained in the driveway for approximately
an hour and a half. (FAC ¶ 40.) While in the driveway,
Hays made various comments to Plaintiff, including questions
about what color underwear she was wearing, racial comments
about Plaintiff's Vietnamese boyfriend, and statements
about his sexual preferences. (Id.)
alleges that she did not report the incident until she was
contacted by SDPD detectives after January 1, 2014, because
she feared no one would believe her. (FAC ¶ 40.)
Moreover, the FAC alleges that Plaintiff suffered from-and
continues to suffer from-a mental illness made worse by
chronic drug use. (Id. ¶ 36.) This mental
illness has allegedly caused Plaintiff to (i) become
“incapable of caring for her property, or transacting
business, or understanding the nature or effects of her acts,
” and (ii) lack “the legal capacity to make
decisions.” (Id.) On February 9, 2014, the
SDPD arrested Hays for crimes committed against various women
while Hays was on duty as a police officer. (Id.
¶ 35.) On February 18, 2014, the San Diego County
District Attorney filed a criminal complaint against Hays,
charging him with felonies and misdemeanors for the alleged
crimes committed against Plaintiff and two other women while
Hays was on duty. (Id.) Hays subsequently resigned
from the SDPD on February 19, 2014. (Id.) On August
22, 2014, Hays pled guilty to one count of false imprisonment
and two misdemeanor counts of assault under color of
alleges that Hays's actions on December 23, 2013,
constitute a violation of her civil rights under the Fourth
and Fourteenth Amendments of the U.S. Constitution. (FAC
¶ 41.) Plaintiff also alleges that as a result of
Hays's conduct on December 23, 2013, Plaintiff suffered
injury, including mental and emotional distress, humiliation,
anxiety, and physical pain and suffering. (Id.
the City of San Diego and Hays moved to dismiss the claims in
the Complaint on the ground that they were time barred by the
statute of limitations. (ECF Nos. 4, 14.) The Court granted
in part and denied in part the City's motion and granted
Hays's motion with leave to amend. Wilson v.
Hays, ___ F.Supp.3d ___, 2017 WL 131817, at *10 (S.D.
Cal. 2017). Plaintiff filed a First Amended Complaint on
January 27, 2017. (ECF No. 19.) Hays now moves to dismiss
Plaintiff's 42 U.S.C. § 1983 claim against him. (ECF
motion to dismiss pursuant to 12(b)(6) of the Federal Rules
of Civil Procedure tests the legal sufficiency of the claims
asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court
must accept all factual allegations pleaded in the complaint
as true and must construe them and draw all reasonable
inferences from them in favor of the non-moving party.
Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38
(9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a
complaint need not contain detailed factual allegations;
rather, it must plead “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) (citing Twombly, 550 U.S. at 556).
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of entitlement to relief.'”
Id. (quoting Twombly, 550 U.S. at 557).
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (alteration in original)
(quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). A court need not accept “legal
conclusions” as true. Iqbal, 556 U.S. at 678.
Despite the deference the court must pay to the
plaintiff's allegations, it is not proper for the court
to assume that “the [plaintiff] can prove facts that it
has not alleged or that the defendants ...