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Orff v. City of Imperial

United States District Court, S.D. California

November 17, 2017

KALI ORFF, et al., Plaintiffs,
v.
CITY OF IMPERIAL, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [DOC. 14]

          Hon. Thomas J. Whelan, United States District Judge.

         Pending before the Court is a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) brought by Defendants City of Imperial and Miguel Colon. The Court decides the matters on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion.

         I. Background

         Plaintiff Kali Orff is a Detective with the Brawley Police Department. (FAC [Doc. 13] ¶ 13.) Her wife, Plaintiff Michelle Kristol, is a Detective with the Ventura County Sheriff's Office. (Id.)

         According to the First Amended Complaint (“FAC”), “[o]n or about January 31, 2016, ” Detective Orff attended a birthday party at a friend's home. (FAC [Doc. 13] ¶ 14.) Along with several acquaintances, she stayed the night at that home. (Id. [Doc. 13] ¶ 14.) The FAC alleges that Defendant Andrew Smithson, a U.S. Customs and Border Protection Agent who was dating one of her friends at the time, sexually assaulted Orff several hours after she went to bed. (See Id. [Doc. 13] ¶ 15.) It alleges that upon being awakened by the assault, “Detective Orff punched her attacker in the face, called 911, and reported the sexual battery to the responding officers of [the Imperial Police Department].” (Id. [Doc. 13] ¶ 16.) Orff was then evaluated at Pioneers Memorial Hospital. (Id. [Doc. 13] ¶ 17.)

         The FAC alleges that Defendant Smithson confessed to the assault. (FAC [Doc. 13] ¶ 20.) Nevertheless, it alleges, “[the Imperial Police Department] made no attempt to determine the assailant's blood alcohol content or to gather any biological evidence” from him. (Id. [Doc. 13] ¶ 19.) Moreover, the FAC alleges that “[f]ollowing the assault, [the Imperial Police Department] failed to submit Detective Orff's case to the District Attorney's office for over 100 days.” (Id. [Doc. 13] ¶ 21.) Ultimately, according to the FAC, “the District Attorney's Office declined to prosecute, citing an unknown level of intoxication of the assailant.” (Id. [Doc. 13] ¶ 27.) It alleges, “[t]o date, . . . Smithson has not been charged with any crime, and [he] remains free to work in a position of authority on the United States border[.]” (Id. [Doc. 1] ¶ 20.)

         The FAC further alleges that Defendant Michael Colon, Chief of the Imperial Police Department, “made an active effort to interfere with the case.” (FAC [Doc. 1] ¶ 21.) According to the FAC, “[s]hortly after the assault, ” Chief Colon “called Detective Orff's boss at the Brawley Police Department . . . and gave him the details of Orff's sexual assault.” (Id. [Doc. 1] ¶ 22.) During that call, Chief Colon allegedly “blamed Orff for being victimized” and “accused Orff of being immoral because of her sexual orientation.” (Id.) Thereafter, “on or about May 16, 2016, Detective Orff's wife, Detective Kristol, contacted [the Imperial Police Department] to get an explanation as to why Detective Orff's case had not been submitted to the District Attorney.” (Id. [Doc. 1] ¶ 24.) “In response, Chief Colon contacted Detective Kristol's boss, and began to divulge details of Detective Orff's assault to him and to attack Detective Orff's character and fitness as an officer.” (Id.)

         The First Amended Complaint asserts nine causes of action: (1) violation of 42 U.S.C. § 1983 against Chief Colon and Doe Defendants by Plaintiff Orff; (2) violation of 42 U.S.C. § 1983 against the Imperial Police Department and the City of Imperial by Plaintiff Orff; (3) intentional infliction of emotional distress against all Defendants by Plaintiff Orff, and against the Imperial Police Department, City of Imperial, Chief Colon, and Doe Defendants by Plaintiff Kristol; (4) negligent infliction of emotional distress against all Defendants by Plaintiff Orff, and against the Imperial Police Department, City of Imperial, Chief Colon, and Doe Defendants by Plaintiff Kristol; (5) public disclosure of private facts against Chief Colon by Plaintiff Orff; (6) false light against Defendant Colon by Plaintiff Orff; (7) defamation against Chief Colon by Plaintiff Orff; (8) sexual battery against Defendant Smithson by Plaintiff Orff; and (9) battery against Defendant Smithson by Plaintiff Orff. (FAC [Doc. 13].)

         II. Legal Standards

         A. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

         The Court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). In ruling on the motion, a court must “accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007).

         A complaint 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). The Supreme Court has interpreted this rule to mean that “[f]actual allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations in the complaint 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).

         Well-pled allegations in the complaint are assumed true, but a court is not required to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable inferences. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), opinion amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001).

         B. Qualified Immunity

         “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' ” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. “Public officials are immune from suit under 42 U.S.C. § 1983 unless they have ‘violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.' ” City & Cnty. of San Francisco, Calif. v. Sheehan, 135 S.Ct. 1765, 1774 (2015). “In other words, [qualified] immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.' ” White v. Pauly, 137 S.Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)) (internal quotation omitted).

         “Qualified immunity is ‘an immunity from suit rather than a mere defense to liability.' ” Pearson, 555 U.S. at 237 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). As such, “ ‘it is effectively lost if a case is erroneously permitted to go to trial.' ” Id. at 231 (quoting Mitchell, 472 U.S. at 526). “Indeed, [the Supreme Court has] made clear that the ‘driving force' behind creation of the qualified immunity doctrine was a desire to ensure that ‘insubstantial claims against government officials be resolved prior to discovery.' ” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1983)). “Accordingly, ‘[the Supreme Court has] repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation.' ” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)).

         In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court mandated a two-step procedure for analyzing the qualified immunity defense. First, the court was to decide whether the facts that a plaintiff has alleged made out a violation of a constitutional right, and second if so, the court was to decide whether the right was clearly established at the time. See Pearson, 555 U.S. at 232 (referencing Saucier, 533 U.S. at 201). The Supreme Court later rejected rigid, mandatory adherence to this approach in Pearson. 533 U.S. at 237-42. The Pearson Court emphasized flexibility, especially when qualified immunity is asserted early in litigation-noting that “when qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff's claim or claims may be hard to identify, ” 555 U.S. at 238-39, and that “[t]here are circumstances in which the first step of the Saucier procedure may create a risk of bad decision making.” Id. at 239. In short, sometimes it is better to reach the issue of whether any right that does exist is clearly established before reaching the question of whether the right exists in the first place. See id. This is consistent with “the general rule of constitutional avoidance”-avoiding constitutional questions if there is another way of deciding a case. See id. at 241. Notably, the Court emphasized that “Saucier's two-step protocol ‘disserve[s] the purpose of qualified immunity' when it ‘forces the parties to endure additional burdens of suit- such as the costs of litigating constitutional questions and delays attributable to resolving them-when the suit otherwise could be disposed of more readily.' ” Id. at 237 (quoting Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 30).

         In order to overcome qualified immunity at the pleading stage, a plaintiff must plead facts to overcome both prongs of the immunity: “ ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.' ” See Wood v. Moss, 134 S.Ct. 2056, 2066-67 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). However, in the Ninth Circuit, “[w]hen . . . defendants assert qualified immunity in a motion to dismiss under Rule 12(b)(6), ‘dismissal is not appropriate unless [the Court] can determine, based on the complaint itself, that qualified immunity applies.' ” O'Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (quoting Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001)).

         III. Discussion

         A. 42 U.S.C. § 1983 Against Chief Colon

         1. Plaintiff Adequately Alleges a Theory of Discrimination.

         First, Defendants contend that “Orff continues to assert the same equal protection claim set forth in the original complaint, based upon identical factual allegations, even though the court ruled those allegations did ‘not allege a viable claim as to how Chief Colon's alleged interference with either the investigation or the prosecution of Detective Orff's case amounts to a constitutional violation.' ” (Defs.' Mot. [Doc. 14-1] 3:2-6 (quoting June 12, 2017 Order [Doc. 12].)

         In fact, the Court's previous order merely noted that the original Complaint did not allege a discrimination theory. (See June 12, 2017 Order [Doc. 12] 8:9-9:14.) The FAC corrected this deficiency. (FAC [Doc. 13] ¶ 32 (“Officer Defendants deprived Detective Orff of her right to freedom from the discriminatory denial of police services when they interfered with the prosecution of Detective Orff's sexual assault because of her sexual orientation.”).)

         Defendants' motion does not explain how the facts alleged in the FAC might be insufficient to support such a theory. (See Defs.' Mot. [Doc. 14-1] 3:1-12.) Rather, it seems to evince a misreading of the Court's previous order as requiring more facts than were alleged in the previous Complaint. No such condition was implicit in the previous order, and Defendants provide no reasoning as to why the pleading standard would require more. See Fed.R.Civ.P. 8(a) (“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”); Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570 (summarizing the relevant pleading standards).

         Defendants' motion to dismiss the first cause of action on this ground will be denied.

         2. The Facts Alleged in the Complaint Are Sufficient to Overcome Qualified Immunity at this Stage.

         Defendants contend that Chief Colon is entitled to qualified immunity based on the facts alleged in the FAC, on the ground that no clearly established right to privacy existed to preclude him from sharing the intimate details of a sexual assault with the supervisors of both the victim and the victim's spouse. (Defs.' Mot. [Doc. 14-1] 3:13-10:4.)

         In Whalen v. Roe, the Supreme Court recognized “the individual interest in avoiding disclosure of personal matters[.]” 429 U.S. 589, 599 (1977). It quoted Justice Brandeis in his recognition of “ ‘the right to be let alone' as ‘the right most valued by civilized men[.]' ” Id. at 599 n.25 (quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)); accord Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 457 (1977). “While the Supreme Court has expressed uncertainty regarding the precise bounds of the constitutional ‘zone of privacy, ' its existence is firmly established.” In reCrawford, 194 F.3d 954, 958 (9th Cir. 1999) (quoting Whalen, 429 U.S. at 598). The privacy of sexual activities is constitutionally protected. See Thorne v. City of El Segundo, 726 F.2d 459, 468 (9th Cir. 1983). ‚ÄúThis conclusion follows from the cases holding that such basic matters as contraception, abortion, marriage, and family life ...


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