United States District Court, N.D. California, San Francisco Division
ORDER DISMISSING CASE Re: ECF No. 31
BEELER, United States Magistrate Judge
plaintiff Ok Soon Key sued an officer of the San Francisco
Police Department; liberally construed, her complaint alleges
that the officer used excessive force against her daughter in
violation of the Fourth Amendment and her Fourteenth
Amendment due-process right to associate with her
daughter. The defendant moves to dismiss because Ms.
Key cannot assert her daughter's Fourth Amendment rights
and does not plausibly plead a Fourteenth Amendment
claim. The court can decide the motion under
Civil Local Rule 7-1(b) and grants the motion to dismiss the
Fourth Amendment claim with prejudice and the Fourteenth
Amendment claim with leave to amend.
complaint has the following fact allegations about the police
officer's use of force against Ms. Key's daughter.
Ms. Key and her daughter had an argument on February 24,
2015, and Ms. Key called the police. The police grabbed the
daughter and tried to handcuff her, twisting her
body. It looked like the police officer used his
leg, slammed her on the ground, and smashed her face on the
carpet; the daughter couldn't move. He might have
fallen down hard on one of his legs, and it “[l]ooked
like he was very mad when he slammed her on the ground and
smashed her face on the carpet. She couldn't
move.” The daughter didn't do anything wrong,
there was no reason to hit her or smash her face on the
carpet and handcuff her; it didn't match the situation at
hand. Her face was scratched up. Her hip was
broken so badly that she could not have surgery at CPMC and
had to have surgery at UCSF; two years later, she is still in
pain and it is unnecessarily hard for her to
walk. Her body is not like it was before, her
face has had a scar for two years, she can barely walk, and
she feels threatened, doesn't want to answer the phone,
and is in emotional distress. Ms. Key is in pain for her
complaint also says that Ms. Key went with her daughter to
the hospital that day and was present during her
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief” to give the defendant “fair notice”
of what the claims are and the grounds upon which they rest.
See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This statement
“must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“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.
“The plausibility standard is not akin to a
'probability requirement, ' but it asks for more than
a mere possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). A complaint does not need detailed factual
allegations, but “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. Factual allegations must be enough to raise a
claim for relief above the speculative level . . . .”
Twombly, 550 U.S. at 555 (internal citations
omitted). Also, “[w]here 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).
court construes pro se pleadings more
“leniently, ” the court cannot salvage claims
that are fatally deficient. See De la Vega v. Bureau of
Diplomatic Sec., No. 07-CV-3619-WHA, 2007 WL 2900496, at
*1 (N.D. Cal. Oct. 1, 2007). If a court dismisses a
complaint, it should give leave to amend unless the
“the pleading could not possibly be cured by the
allegation of other facts.” Cook, Perkiss and
Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d
242, 247 (9th Cir. 1990).
cannot assert a violation of her daughter's Fourth
Amendment Rights. Alderman v. United States, 394
U.S. 165, 174 (1969); Moreland v. Las Vegas Met. Police
Dep't, 159 F.3d 365, 369 (9th Cir. 2001). The court
dismisses the claim with prejudice.
next issue is whether Ms. Key states a Fourteenth Amendment
claim. The Fourteenth Amendment's substantive-due-process
clause protects against the arbitrary or oppressive exercise
of government power. See County of Sacramento v.
Lewis, 523 U.S. 833, 845-46 (1998). Parents and children
may assert Fourteenth Amendment substantive-due-process
claims if they are deprived of their liberty interest in the
companionship and society of their child or parent through
official conduct. See Lemire v. Cal. Dept. of Corrections
& Rehabilitation, 726 F.3d 1062, 1075 (9th Cir.
2013) (parents and children); Smith v. City of
Fontana, 818 F.2d 1411, 1418-19 (9th Cir.
1987); Curnow v. Ridgecrest Police,
952 F.2d 321, 325 (9th Cir. 1991) (parent); Crumpton v.
Gates, 947 F.2d 1418, 1421-24 (9th Cir. 1991) (child);
cf. Ward v. City of San Jose, 967 F.2d 280, 283-84
(9th Cir. 1992) (sibling has no constitutionally protected
interest in brother's companionship under section 1983).
“[T]he Due Process Clause is violated by executive
action only when it can properly be characterized as
arbitrary, or conscience shocking, in a constitutional
sense.” Lewis, 523 U.S. at 845-47 (quotation
omitted); see Lemire, 726 F.3d at 1075. The
cognizable level of executive abuse of power is that which
“shocks the conscience” or “violates the
decencies of civilized conduct.” Lewis, 523
U.S. at 846. Mere negligence or liability grounded in tort
does not meet the standard for a substantive-due-process
decision. Id. at 848-49.
Ninth Circuit has explained: “In determining whether
excessive force shocks the conscience, the court must first
ask 'whether the circumstances are such that actual
deliberation [by the officer] is practical.'”
Wilkinson, 610 F.3d at 553 (quoting Porter v.
Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (quoting in
turn Moreland v. Las Vegas Metro. Police Dep't,
159 F.3d 365, 372 (9th Cir. 1998) (internal quotation
omitted)). “Where actual deliberation is practical,
then an officer's 'deliberate indifference' may
suffice to shock the conscience. On the other hand, where a
law enforcement officer makes a snap judgment because of an
escalating situation, his conduct may be found to shock the
conscience only if he acts with a purpose to harm unrelated
to legitimate law enforcement objectives.” Hayes v.
County of San Diego, 736 F.3d 1223, 1230 (9th Cir. 2013)
(citing Wilkinson v. Torres, 610 F.3d 546, 554 (9th
Ms. Key has not plausibly pleaded conduct that shocks the
conscience or that the officer's conduct interfered with
her familial relationship with her daughter. The court does
not think that she can amend her complaint to state a claim.
But given the Ninth Circuit's standards for liberally
construing pro se ...