United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
COUNTY OF FRESNO'S MOTION TO DISMISS (Doc. No.
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
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.
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.)
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.)
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.) 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.)
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.
Federal Civil Rights Claim
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).
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 ...