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Zepeda v. Schuld

United States District Court, N.D. California

May 8, 2017

RICARDO ZEPEDA, Plaintiff,
v.
WALTER N. SCHULD, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS THE SECOND AMENDED COMPLAINT; ORDER DISCHARGING ORDER TO SHOW CAUSE RE: DKT. NOS. 69 & 70

          KANDIS A. WESTMORE United States Magistrate Judge

         On February 27, 2017, Defendants Richmond Police Department and Richmond Chief of Police Chris Magnus filed a motion to dismiss Plaintiff Ricardo Zepeda's second amended complaint on the grounds that the complaint fails to state a claim upon which relief can be granted. (Richmond Defs.' Mot., Dkt. No. 69.) On February 28, 2017, Defendants Walter N. Schuld and Brian Bubar of the San Pablo Police Department also filed a motion to dismiss Plaintiff's second amended complaint under Federal Rule of Civil Procedure 12(b)(6). (San Pablo Defs.' Mot., Dkt. No. 70.)

         On May 4, 2017, the Court held a hearing, and, after careful consideration of the parties' arguments and the applicable legal authority, for the reasons set forth below, the Court GRANTS Defendants' motions to dismiss with leave to amend.

         I. BACKGROUND

         Plaintiff Ricardo Zepeda alleges civil rights violations in connection with various contacts with law enforcement agencies and personnel, including the San Pablo Police Department, the Richmond Police Department, and the Contra Costa County Sheriff's Department.[1] (Second Am. Compl., “SAC, ” Dkt. No. 67.)

         On February 12, 2012, Plaintiff alleges that Shane (sp?) Pate, Special Response Team, the Richmond Police Department, Officer Rocky, Brian Bubar, and 20 to 30 officers came to his house and searched without a warrant, handcuffed Plaintiff and his family during the duration of the search, and broke Plaintiff's foot. (SAC ¶ 2.)

         On May 6, 2013, Officer Bubar served Plaintiff with another allegedly invalid search warrant for his residence. (SAC ¶ 4.) During that search, Plaintiff was handcuffed by Officer Bubar and arrested for being a felon in possession of a firearm. Id. Plaintiff was then interrogated despite demanding an attorney. (SAC ¶ 5.) Plaintiff was only released after he promised to cooperate. (SAC ¶ 6.)

         In addition, Plaintiff generally alleges that he is being discriminated against and harassed on the basis of his race, and that his rights continue to be violated by being unlawfully stopped, having his residence subject to search without a valid warrant, excessive force, malicious prosecution, and retaliation. (SAC ¶¶ 8-10.)

         On December 12, 2013, Plaintiff filed the instant action, but the initial complaint was dismissed with leave to amend, and Plaintiff was advised that the Federal Pro Bono Project's Help Desk could assist him in amending his complaint. (7/3/14 Order, Dkt. No. 41 at 8.)

         On February 14, 2017, Plaintiff filed the second amended complaint. On February 27, 2017, the Richmond Defendants filed a motion to dismiss. (Richmond Defs.' Mot., Dkt. No. 69.) On February 28, 2017, the San Pablo Defendants filed a motion to dismiss. (San Pablo Defs.' Mot., Dkt. No. 70.) Plaintiff did not file timely oppositions to either motion to dismiss, so the Court issued an order to show cause on April 3, 2017, and again advised Plaintiff that the Federal Pro Bono Project's Help Desk was available to assist him in complying with the order to show cause. (4/3/17 Order to Show Cause, Dkt. No. 73 at 1-2.)

         On April 10, 2017, Plaintiff filed an opposition to the Richmond Defendants' motion to dismiss. (Pl.'s Richmond Opp'n, Dkt. No. 74.) On April 12, 2017, Plaintiff filed an opposition to the San Pablo Defendants' motion to dismiss. (Pl.'s San Pablo Opp'n, Dkt. NO. 75.) On April 24, 2017, both sets of defendants filed replies. (Richmond Defs.' Am. Reply, Dkt. No. 78; San Pablo Defs.' Reply, Dkt. No. 79.)

         On May 1, 2017, Plaintiff filed two “replies” to the order to show cause, which also included sur-replies to both motions to dismiss. (Dkt. Nos. 80 & 81.) Plaintiff did not have leave of court to file the sur-replies, so those portions of the filings are stricken.

         II. LEGAL STANDARD

         The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). However, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, (1957)).

         Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

         In considering such a motion, a court must "accept as true all of the factual allegations contained in the complaint, " Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted), and may dismiss the case or a claim "only where there is no cognizable legal theory" or there is an absence of "sufficient factual matter to state a facially plausible claim to relief." Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation marks omitted).

         A claim is plausible on its face when a plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). "Threadbare recitals of the elements of a cause of action" and "conclusory statements" are inadequate. Iqbal, 556 U.S. at 678; see also Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) ("[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim."). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully . . . When 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." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal citations omitted).

         Generally, if the court grants a motion to dismiss, it should grant leave to amend even if no request to amend is made "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations omitted).

         III. DISCUSSION

         A. Failure to Satisfy Pleading Standards

         As an initial matter, the second amended complaint fails to satisfy Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). Here, the complaint does not even provide a formulaic recitation of the elements of each cause of action, which would still be insufficient to withstand a motion to dismiss under Rule 12(b)(6). See Twombly, 550 U.S. at 555. Further, each of Plaintiff's causes of action incorporates previous paragraphs without identifying which facts relate to which causes of action, leaving the Court to guess which facts pertain to which causes of action. For example, Plaintiff attempts to incorporate all facts stated in the original complaint, which he was explicitly advised not to do in the order dismissing the original complaint. (SAC ¶ 1; cf. 7/3/14 Order at 7.) Also, all causes of action refer to paragraphs 7 and 8, which appear to refer to the dog-bite incident that occurred in 2008, which was already found to have been time-barred. (See, e.g., SAC ¶ 11.) In many instances, it is also unclear when the alleged violations occurred, as Plaintiff has failed to specify the dates on which the incidents are alleged to have occurred.

         Plaintiff also included his own declarations, as well as declarations from family members, providing additional facts in support of both oppositions, and attached a list of handwritten facts. (See 1st Decl. of Ricardo Zepeda, “1st Zepeda Decl., ” Dkt. No. 74 at 17; 2d Decl. of Ricardo Zepeda, “2d Zepeda Decl., ” Dkt. No. 75 at 12; Family member Decls., Dkt. No. 74 at 10-11, 15-16.) Defendants object to the inclusion of these declarations, which is well taken. (San Pablo Defs.' Reply at 1-2.) To the extent that these facts support specific causes of action, they must be included in the operative complaint. Since they were improperly provided in support of Plaintiff's oppositions, they are STRICKEN.

         Accordingly, as currently pled, the second amended complaint is wholly insufficient and must be amended to comply with the Iqbal-Twombly pleading standard. Thus, Plaintiff must amend all causes of action-except for those theories dismissed without leave to amend-to allege specific facts, including the dates of all alleged incidents, sufficient to state a claim. To avoid confusion, he should avoid incorporating allegations stated in previous paragraphs. Each cause of action should clearly state the date on ...


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