United States District Court, S.D. California
SAN DIEGO BRANCH OF NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs,
COUNTY OF SAN DIEGO, a Subdivision of the State,, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO
DISMISS (ECF Nos. 22, 23)
L. Sammartino United States District Judge
before the Court is Defendants County of San Diego's and
Sheriff William Gore's Motion to Dismiss Plaintiffs'
First Amended Complaint (“County MTD”), (ECF No.
22), and Defendants City of El Cajon's and Jeff
Davis's Motion to Dismiss First Amended Complaint and for
a More Definite Statement (“City MTD”), (ECF No.
23). Also before the Court are Plaintiffs' Oppositions to
the County Motion to Dismiss, (“County
Opp'n”), (ECF No. 28), and the City Motion to
Dismiss, (“City Opp'n”), (ECF No. 27), as
well as the corresponding Replies (“County
Reply”), (ECF No. 31); (“City Reply”), (ECF
No. 30). The Court vacated the scheduled hearing and took the
Motions under submission without oral argument pursuant to
Civil Local Rule 7.1(d)(1). (ECF No. 34.) Having considered
the Parties' arguments and the law, the Court rules as
Olango was an African American man who was unarmed when
police shot and killed him on September 27, 2016. (Compl.
¶ 2.) The events here at issue occurred in the wake of
Mr. Olango's death.
four days after Mr. Olango's death, community members
held a vigil at the location of the shooting-the parking lot
behind a restaurant, Los Panchos. (Id.) This parking
lot is located in a privately owned shopping center.
(Id.) Plaintiffs allege that Los Panchos granted
Plaintiffs permission to be there. (Id.)
first vigil, approximately eighty members of the community
gathered and created a memorial with tables, candles,
photographs, signs, and a canopy. (Id. at 3.) Some
members barbequed and offered free food to the community.
(Id.) Some collected donations for Mr. Olango's
family. (Id.) Plaintiffs allege that the vigil was
quiet and peaceful at all times. (Id.)
that night, at approximately 12:00 a.m., a police helicopter
informed the vigil attendees that the gathering had been
declared an unlawful assembly. (Id. at 4.) Many
vigil attendees left at that time, (id.), while
others remained to speak with Sheriff's deputies who soon
blocked both exits of the shopping center in which the
parking lot was located, (id. at 5). After
approximately thirty minutes of discussion between community
members and the Sheriff's deputies, the deputies either
dispersed the remaining vigil members or arrested the
approximately twelve members who refused to leave.
(Id. at 6.) Sheriff's deputies then tore down
signs and posters at the vigil site. (Id. at 7.)
Plaintiffs allege that at all times the “Sheriff's
deputies could easily see and ascertain the peaceful nature
of the vigil.” (Id. at 8.)
two weeks later, at another vigil in the Los Panchos parking
lot, the police again declared an unlawful assembly at
approximately 12:00 a.m. (Id. at 9.) Defendants
additionally asserted that Plaintiffs were trespassing.
(Id.) Plaintiffs allege that at that time
“[n]one of the [vigil attendees'] behavior could be
called violent, boisterous, or tumultuous conduct . . .
.” (Id.) Plaintiffs do not allege they had
permission from Los Panchos to be at the vigil site that
night, nor do Plaintiffs allege that law enforcement could
see and ascertain the peaceful nature of the vigil.
(Compare Id. ¶¶ 2-8, with Id.
that time, Plaintiffs allege that the El Cajon Police are
threatening to arrest for trespassing “any community
members/protestors who go to the shopping center to visit the
vigil site . . . .” (Id. at 11.) Three
Plaintiffs, and approximately seven community members, have
been arrested by El Cajon police officers for trespassing at
the vigil location. (Id. at 12.) All Plaintiffs
allege that they “would visit the vigil site to
exercise their Constitutional Rights but for the threat of
arrest by the Defendants . . . .” (Id. at 13.)
initially filed suit in this Court seeking a temporary
restraining order to enjoin law enforcement both from
prohibiting peaceful gatherings at the vigil site and
arresting community members for merely being present at the
vigil site. (See generally Ex Parte Appl. for TRO
(“TRO Appl.”), ECF No. 4.) The Court held a
hearing on the TRO Application and subsequently denied the
Application. (ECF Nos. 12, 16.) Defendants have now moved to
dismiss the underlying Complaint. (ECF Nos. 22, 23.)
Rule of Civil Procedure 12(b)(6) permits a party to raise by
motion the defense that the complaint “fail[s] to state
a claim upon which relief can be granted, ” generally
referred to as a motion to dismiss. The Court evaluates
whether a complaint states a cognizable legal theory and
sufficient facts in light of Federal Rule of Civil Procedure
8(a), which requires a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Although Rule 8 “does not require
‘detailed factual allegations, ' . . . it [does]
demand more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). In other words, “a 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 (citing Papasan v. Allain, 478 U.S.
265, 286 (1986)). A complaint will not suffice / / /
“if it tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.' ”
Iqbal, 556 U.S. at 677 (citing Twombly, 550
U.S. at 557).
order to survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.' ” Id. (quoting Twombly,
550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6).
A claim is facially plausible when the facts pled
“allow the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 677 (citing Twombly, 550
U.S. at 556). That is not to say that the claim must be
probable, but there must be “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. Facts “‘merely consistent with'
a defendant's liability” fall short of a plausible
entitlement to relief. Id. (quoting
Twombly, 550 U.S. at 557). Further, the Court need
not accept as true “legal conclusions” contained
in the complaint. Id. This review requires
context-specific analysis involving the Court's
“judicial experience and common sense.”
Id. at 678 (citation omitted). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-‘that the
pleader is entitled to relief.' ” Id.
the County Motion and City Motion at times assert overlapping
arguments, they also each raise concerns specific to the
distinct moving parties. Accordingly, the Court addresses
each separately where relevant, turning first to the County
Motion and then addressing the City Motion.
The County Motion to Dismiss
County and Sheriff Gore argue both that they should be
entirely dismissed from the action, and, in the alternative,
that various individual claims warrant dismissal. (County MTD
3-13.) However, because the Court concludes that the
Complaint currently fails to allege sufficient facts to state
any claim against either Defendant, the Court only addresses
this threshold issue.
first to Plaintiffs' sparse allegations against Sheriff
Gore in his individual capacity-each allegation is either
alleged on information and belief, merely a legal conclusion
couched as a statement of fact, or some combination of the
two. (Compl. ¶¶ 14 (“It is alleged on
information and belief, that defendants Police Chief JEFF
DAVIS and Sheriff WILLIAM GORE imposed an illegal and
unwritten curfew on free speech activities . . . .”);
35 (“It is alleged on information and belief that
either Sheriff WILLIAM GORE or officers directly subordinate
to Sheriff Gore ordered the vigil to be dispersed despite its
peaceful nature and in direct violation of the First
Amendment rights of Plaintiffs and other members of the
community ..... It is alleged that defendant WILLIAM GORE
either directly ordered or acquiesced to the decision to
declare the vigil an unlawful assembly or failed to properly
train and supervise the deputies under his charge resulting
in the violation of the Constitutional rights of the
plaintiffs.”); 118 (“This pattern and practice of
illegal conduct, which included the excessive use of force by
officers and the wrongful arrests of protestors, was approved
and encouraged by policy makers such as Sheriff WILLIAM GORE
and El Cajon Chief of Police JEFF DAVIS.”).) This is
insufficient to state a claim against Sheriff Gore in his
personal capacity. E.g., Blantz v. Cali.
Dep't of Corr. & Rehab., Div. of Corr. Health Care
Servs., 727 F.3d 917, 926-27 (9th Cir. 2013)
(conclusory, “on information and belief”
allegations are insufficient to state a claim).
Plaintiffs' sparse allegations against the County (and
Sheriff Gore in his official capacity) fare much better.
(E.g., id. ¶ 119 (“The
Sheriff's Department has a pattern and practice of
declaring peaceful assemblies unlawful based on their own
convenience.”).) For instance, although Plaintiffs
allege that the Sheriff's department declared the October
1 and 15 vigils to be unlawful, (e.g., id.
¶ 48, 49), these allegations are either directly
undercut by earlier allegations, (id. ¶ 14
(“[O]n October 1, 2016, the members of the vigil were
informed . . . that the police had declared the
vigil an unlawful assembly.”), or lack sufficient
specificity to be plausibly pled against the County,
(id. ¶ 9 (stating only that “the
Defendants declared an unlawful assembly”
(emphasis added))). Accordingly, the only validly pled
allegations center on the fact that “Sheriff Deputies
tore down signs the demonstrators had placed on the property
with the permission of the tenants[, ]” (id.
¶ 66; see also Id. ¶ 7), or arrested vigil
attendees for refusing to disperse after the
unlawful-assembly declaration, (id. ¶¶ 75,
78, 99, 103). But taking these allegations together-and even
assuming that the Sheriff's Department twice declared an
unlawful assembly-is nonetheless insufficient to state a
claim for municipal liability. See, e.g., Davis v.
City of Ellensburg, 869 F.2d 1230, 1234 (9th Cir. 1989)
(“[A] single act of a non-policymaking employee cannot
give rise to municipal liability.” (citing City of
Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985))).
the foregoing, the Court DISMISSES from this
action both the County of San Diego and Sheriff William Gore.
The City Motion to Dismiss
City and Chief Davis argue that each cause of action should
be dismissed for various reasons and additionally adopt the
County Motion to Dismiss' arguments. The Court addresses
the issues presented in the following order: (A) whether
Plaintiff NAACP has associational standing; (B)
Plaintiffs' claim for declaratory relief; (C) the alleged
First Amendment violations; (D) the alleged unlawful
seizures, arrests, detentions, and imprisonments; (E) the
City's liability; and (F) Defendants' request for a
more definite statement.
The NAACP and ...