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Jessen v. County of Fresno

United States District Court, E.D. California

June 15, 2017



         This matter is before the court on defendant County of Fresno's motion to dismiss plaintiff's complaint with respect to certain claims. A hearing on the motion was held on June 6, 2017. Attorney Richard Belardinelli appeared on behalf of plaintiffs. Attorney Leslie Dillahunty appeared on behalf of defendant County of Fresno (“County”). Having considered the parties' briefs and oral arguments and for the reasons set forth below, the court will grant in part and deny in part the defendant County's motion to dismiss.


         In their complaint, plaintiffs David Jessen (“David”) and Gretchen Jessen (“Gretchen”) allege as follows. Plaintiffs live at 2191 South Rolinda Avenue, in Fresno, California. (Doc. No. 1-1, Ex. A (“Compl.”) ¶ 8.) On June 11, 2016, construction workers on a neighboring property encountered a homeless man on plaintiffs' property and asked the man to leave. (Id. ¶ 9.) The workers then saw the man walk to the Jessens' home and sit under a tree in the front yard. (Id.) The workers heard glass break, walked toward the Jessens' house, and saw that one of the Jessens' front windows was broken. (Id.) They subsequently called the Fresno County Sheriff's Office to report their observations. (Id.)

         While he was away from the house, David Jessen received a phone call from the Sheriff's Office regarding a possible break-in at the couples' home. (Id. ¶ 8.) When David arrived, a Sheriff's deputy informed him of what the construction workers had reported. (Id. ¶ 9.) The deputy then asked David whether he had any guns in the house. David confirmed that he owned two shotguns but that the shells were well-hidden, and that he owned a handgun which was also well-hidden in the house. (Id. ¶ 10.) After Gretchen and their daughter arrived, Sheriff's deputies informed the family that a homeless man was inside their house and that after being told to come out and surrender, the man gave the following replies: (1) “I am not ready to, ” (2) “come and get me, ” and (3) “if you come in I will shoot.” (Id. ¶ 11.)

         Over the course of several hours, officers with the Fresno County Sheriff's Department and the Clovis Police Department conducted an operation to remove the homeless man from the Jessens' house, which plaintiffs allege was undertaken as a training exercise for the officers. (See Id. ¶¶ 15, 18, 19.) The operation involved over fifty law enforcement vehicles, a K-9 unit, two helicopters, two ambulances, one fire truck, a crisis negotiation unit, a robot, and two SWAT teams. (Id. ¶ 20.) Plaintiffs allege that as a result of the conducting of the operation, the Jessens' home was significantly damaged. Notably, they allege that incident resulted in physical damage to windows, doors, interior walls, and exterior fencing on the property. (Id. ¶ 21.) Officers also used teargas throughout the house, which required removal and replacement of carpet and drywall. (Id. ¶¶ 21, 25.)[1]

         Plaintiffs commenced this action in Fresno County Superior Court on March 8, 2017. Their complaint alleges the following causes of action against both the County and the City of Clovis (“City”): (1) liability under 42 U.S.C. § 1983 for various violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; (2) state law negligence; and (3) violations of the California Constitution. (Compl.) On April 13, 2017, defendants County and City removed the action to this federal court. (Doc. No. 1.) On April 28, 2017, defendant County filed the instant motion to dismiss certain of plaintiffs' causes of action. (Doc. No. 9.)[2] On May 23, 2017, plaintiffs filed their opposition to the motion. (Doc. No. 10.) On May 26, 2017, defendant County filed its reply. (Doc. No. 11.)


         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A claim for relief 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). Though Rule 8(a) does not require detailed factual allegations, a plaintiff is required to allege “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); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). “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.” Iqbal, 556 U.S. at 678.


         A. Federal Civil Rights Claim

         The Civil Rights Act provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. Thus, to make out a valid claim under § 1983, a plaintiff must allege and eventually prove that (i) the conduct complained of was committed by a person acting under color of state law; (ii) this conduct deprived a person of constitutional rights; and (iii) there is an actual connection or link between the actions of the defendants and the deprivation allegedly suffered by decedent. See Parratt v. Taylor, 451 U.S. 527, 535 (1981); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-95 (1978); Rizzo v. Goode, 423 U.S. 362, 370-71 (1976).

         Plaintiffs allege various constitutional violations in their § 1983 claim, but in its pending motion to dismiss defendant County challenges only the sufficiency of plaintiffs' claim with respect to the Fifth Amendment. That part of plaintiffs' claim alleges that defendants effectuated a taking ...

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