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Cortez v. City of Oakland

United States District Court, N.D. California

May 2, 2017

OLGA CORTEZ, et al., Plaintiffs,
v.
CITY OF OAKLAND, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS

          THELTON E. HENDERSON United States District Judge

         This matter comes before the Court on separate motions to dismiss the first amended complaint brought by Defendants City of Oakland and Roland Holmgren and by Defendant Joe Turner. The Court finds these motions suitable for resolution without oral argument, see Civil L.R. 7-1(b), and now GRANTS IN PART and DENIES IN PART the motions for the reasons discussed below.

         BACKGROUND

         This case arises from an incident at the home of Plaintiffs Olga and Nemesio Cortez and their minor children on December 7, 2015. The Court detailed the allegations from Plaintiffs' original complaint in its order granting Defendants' motions to dismiss, ECF No. 33 at 1-3, and will not repeat them here. The primary change between the complaint and the First Amended Complaint (“FAC”) is that Plaintiffs now allege that they know that Defendant Turner was the person who allegedly “appeared to point a gun . . .from underneath his shirt” as he ran up Plaintiffs' driveway and subsequently fled the scene. FAC ¶¶ 20, 24. The FAC also includes allegations concerning a July 26, 2016 interview of Plaintiffs by Oakland Police detective John Haney. FAC ¶¶ 35-36, 43. In addition, Plaintiffs no longer name Bryan Budgin or Trevor Stratton as defendants, but they have added a cause of action for violation of 42 U.S.C. § 1983 against Defendant Turner based on alleged violations of Plaintiffs' Fourth Amendment “right to be free from unreasonable searches and seizures.” FAC ¶¶ 50-53.

         The City and Holmgren again move to dismiss all claims asserted against them, ECF No. 38, as has Turner in a separately filed motion, ECF No. 40.

         LEGAL STANDARD

         Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a plaintiff's allegations fail “to state a claim upon which relief can be granted.” In ruling on a motion to dismiss, courts must “accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party.” Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007). However, courts are not “bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Plausibility does not equate to probability, but it requires “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “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.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Dismissal of claims that do not meet this standard should be with leave to amend unless “it is clear that the complaint could not be saved by amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008).

         DISCUSSION

         I. Conceded Arguments

         Plaintiffs failed to respond to two arguments in Defendants' motions: Turner's motion to dismiss the assault claim, and Holmgren's motion to dismiss all claims based on immunity. They have therefore conceded those issues. E.g., Ramirez v. Ghilotti Bros. Inc., 941 F.Supp.2d 1197, 1210 & n.7 (N.D. Cal. 2013). Accordingly, the motions to dismiss the assault claim against Turner and all claims against Holmgren are GRANTED with prejudice.

         II. Fourth Amendment Claim Against Turner

         New to the FAC is a cause of action against Defendant Turner for violation of 42 U.S.C. § 1983. Plaintiffs contend that Turner violated their Fourth Amendment “right to be free from unreasonable searches and seizures, ” FAC ¶ 52, and, in particular, the right “to be free from excessive and/or unreasonable use of force against them, ” FAC ¶ 50. This claim is based on the allegation that, “[a]s Defendant Turner was passing Mrs. Cortez, he appeared to point a gun at Mrs. Cortez and K.C. from underneath his shirt, causing Mrs. Cortez and the Cortez children to fear for their lives. Then, Defendant Turner ran away from the house and up the street, as documented by a neighbor's surveillance camera.” FAC ¶ 20.

         “To state a claim under § 1983, the plaintiff must allege a violation of his constitutional rights and show that the defendant's actions were taken under color of state law.” Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001) (footnote omitted). A defendant's actions are under state law if the defendant “acted pursuant to any government or police goal” or “purported to or pretended to act under color of law, even if his goals ...


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