United States District Court, N.D. California
ORDER DISMISSING PLAINTIFFS' FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND RE: DKT. NOS. 15, 27
JACQUELINE SCOTT CORLEY United States Magistrate Judge.
Cifuentes and H.D.C (collectively, “Plaintiffs”)
allege their civil rights were violated by the Central Marin
Police Authority (“Marin Police”), officer
Cynthia Keast (“Keast”), officer Sean Fahy
(“Fahy”), officer Robert Anderson
(“Anderson”), and officer Jean McVeigh
“Defendants”). Now pending before the Court is
Defendants' Rule 12(b)(6) Motion to Dismiss. Defendants
contend that Plaintiffs' First Amended Complaint fails to
state facts sufficient to sustain any of Plaintiffs' six
claims against Defendants and that attorney's fees under
“U.S.C Section 794(a)” is improper.
carefully considered the pleadings and briefs submitted by
the parties, the Court GRANTS Defendants' motion to
dismiss with leave to amend.
action arises out of an incident on January 26th, 2016 when
Plaintiffs Cifuentes and her son 9-year-old son H.D.C. were
allegedly attacked by police officers in their home.
Plaintiffs were preparing for bed after a verbal argument
with Cifuentes' boyfriend Hugo Malina when a neighbor
called in a disturbance and officers Keast, Fahy, Anderson
and McVeigh were dispatched to the Cifuentes home. (Dkt No.
15 at ¶¶15-16.) Plaintiffs were in Cifuentes'
bedroom when officers Keast and Anderson came to their closed
bedroom door. Keast spoke with Cifuentes, who told the
officers that everything was fine. (Id.) Anderson is
a field training officer and Keast appeared to be in field
training as Anderson was providing Keast with directions.
(Id. at ¶17.)
tried to close the door; however, Keast violently grabbed
Cifuentes by the arm, pushed Cifuentes into the bedroom, and
pushed Cifuentes by her face. (Id.) Officer Fahy
came into the bedroom and one or more officers grabbed
Cifuentes by the neck and threw her against the closet.
(Id.) Two of the officers then grabbed
Cifuentes' arms, twisting and pulling them.
Cifuentes' son cried out for his mother at which point
one of the male officers allegedly grabbed the child's
arms and twisted them behind his back until the child's
wrist fractured. (Id.) Defendant McVeigh then
transported H.D.C. down the hallway and into the living room,
where the child is seen on lapel camera nursing an injured
was not behaving in an unlawful manner yet Cifuentes was
charged with resisting arrest and battery on a police
officer. (Id. at ¶18.) The charges against
Cifuentes were eventually dismissed. (Id.) The video
from the incident clearly demonstrates the poor training of
Keast who “unnecessarily escalated the situation”
by using “unwarranted and excessive force”
against Cifuentes. (Id.) H.D.C. was taken to the
hospital for his injuries and diagnosed with a broken wrist.
(Id. at ¶19.) Plaintiffs suffered physical and
psychological injuries. (Id. at ¶20.)
Claim One: Sufficiency of Plaintiff's Section 1983
first cause of action is brought under 42 U.S.C. § 1983
and alleges violation of the Fourth Amendment to the United
States Constitution. There are two requirements for a Section
1983 claim: (1) that a person acting under color of state law
committed the conduct at issue, and (2) that the conduct
deprived the claimant of some right protected by the
Constitution or laws of the United States. Leer v.
Murphy, 844 F.2d 628, 662 (1988). Therefore, the
“first step in any [§ 1983] claim is to identify
the specific constitutional right allegedly infringed.”
Albright v. Oliver, 510 U.S. 266, 271 (1994).
Liability under section 1983 arises only upon a showing of
personal participation by the defendant. Fayle v.
Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vicarious
liability is inapplicable in Section 1983 actions.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Plaintiff must show that each defendant, through their own
individual actions, violated the constitution. Id.
section 1983 claim fails because it does not distinguish
between Plaintiffs and the individual defendants. For
example, although the complaint alleges that there were two
male officers and two female officers, that one of the two
male officers broke H.D.C.'s wrist, and there are no
other allegations that suggest either of the female officers
used excessive force against H.D.C, H.D.C. (through his
guardian ad litem) has sued all four officers. Moreover, in
their opposition, Plaintiffs assert that Officer Anderson
caused H.D.C.'s injuries, but that is not included in the
complaint. And while Ms. Cifuentes does not know which one of
the officers, besides Officer Keast, used force against her,
presumably she knows whether it was a male or female officer
or at least where that force occurred.
Plaintiffs' section 1983 claim is dismissed with leave to
amend. Any amended complaint should plead each
plaintiff's claim separately and identify, to the best of
their ability, the defendants they believe responsible for
Second Claim: ...