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Cobb v. Dyemartin

United States District Court, S.D. California

March 26, 2018

JOHN COBB, Plaintiff,
v.
ALAN DYEMARTIN, et. al., Defendant.

          ORDER DISMISSING DEFENDANTS AND CLAIMS AND DIRECTING SERVICE OF THE SECOND AMENDED COMPLAINT

          MDHN A. HOUSTON Unied States District Judge

         BACKGROUND

         Plaintiff originally filed a complaint on September 8, 2011. Finding Plaintiff failed to state a claim, this Court dismissed the action. Plaintiff filed an appeal, and the Ninth Circuit Court of Appeals affirmed the order dismissing the action in part and vacated in part. The Ninth Circuit determined the Court properly dismissed the claims against Defendants William Lansdowne, Steven Hansen, Jan Goldsmith, the City of San Diego, the San Diego Police Department, the San Diego County District Attorney, and the San Diego County Sheriff's Department with prejudice. The Ninth Circuit also upheld the Court's dismissal of the federal and state law claims for retaliation, suppression of free speech, conspiracy, denial of equal protection, discrimination and violations of 42 U.S.C. sections 1985 and 1986 against Alan Dyemartin and Chris Cummings. However, the court vacated the dismissal of the Fourth Amendment claim against Dyemartin and Cummings, and the state law claims against those defendants related to the alleged reasonableness of the traffic stop, search and arrest at issue.

         This Court reopened the matter and directed Plaintiff to file an amended complaint. Plaintiff filed his First Amended Complaint which the Court reviewed pursuant to 28 U.S.C. section 1915(e)(2)(B). The Court dismissed Defendants Lansdowne, City of San Diego and San Diego Police Department, and Plaintiffs claims for failure to properly train, failure to supervise and discipline, the Monell claim, conspiracy in violation of the second clause of section 1985(2), for violation of section 1986, and for violation of Plaintiff's Fourteenth Amendment right to due process with prejudice. The Court also dismissed all claims against Defendants Jeffrey Peterson and Daniel Christman with prejudice with the exception of the claims for violation of his civil rights under 42 U.S.C. section 1983, conspiracy under section 1983, abuse of process and negligence which were dismissed with leave to amend. The Court also dismissed the claims for negligence and intentional infliction of emotional distress without prejudice as to Defendants Dyemartin and Cummings. The Court directed Plaintiff to file a Second Amended Complaint addressing the deficiencies for the claims dismissed without prejudice or notify the Court of his intention to proceed against Defendants Dyemartin and Cummings on the first, second, third, fourth, fifth, sixth, seventh and eight causes of action only.

         In response, Plaintiff filed a Second Amended Complaint (“SAC”) asserting claims for false arrest/false imprisonment, battery, negligent infliction of emotional distress and conspiracy, violations of California Civil Code section 52.1, violation of 42 U.S.C. section 1983, conspiracy in violation of section 1983, malicious prosecution, abuse of process, negligence, and intentional infliction of emotional distress and conspiracy. Plaintiff names Dyemartin, Cummings, Peterson, Christman, Chief William Lansdowne, the City of San Diego, San Diego Police Department and Does 1 through 20 as defendants.

         DISCUSSION

         I. Legal Standard

         This Court previously granted Plaintiff's motion to proceed in forma pauperis pursuant to 28 U.S.C. section 1915. A complaint filed by any person seeking to proceed IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent it is “frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). This Court must rule on its own motion to dismiss before directing the complaint be served by the U.S. Marshal pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure. 42 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 1127.

         II. Analysis

         A. Claims against Defendants Lansdowne, City of San Diego and San Diego Police Department

         In its previous order, this Court dismissed Defendants Lansdowne, City of San Diego and San Diego Police Department with prejudice. Plaintiff may not reassert claims against these defendants in this action.

         B. Claims against the Remaining Defendants

         1. First Cause of Action - False Arrest/False Imprisonment

         Plaintiff asserts a claim for false arrest and false imprisonment against Defendants Dyemartin and Cummings. Under California law, false arrest and false imprisonment are the same tort. See Collins v. City and County of San Francisco, 50 Cal.App.3d 671, 673 (1975). False arrest is “one way of committing a false imprisonment.” Id. To state a claim for false imprisonment, a plaintiff must allege “(1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” Easton v. Sutter Coast Hosp., 80 Cal.App.4th 485, 496 (2000).

         Plaintiff alleges he was wrongfully detained and arrested and falsely imprisoned by Defendants Dyemartin and Cummings. SAC ¶ 88. Specifically, Plaintiff alleges Defendant Dyemartin “spotlighted” him while he was driving lawfully without his headlights on, and, in response, Plaintiff put on his headlights. Id. ¶ 52. He further alleges Defendants Dyemartin and Cummings stopped him, searched him, arrested him and placed him in the back of their patrol car after handcuffing him. Id. ¶¶ 53, 58. Plaintiff asserts he was driving lawfully within the one-half hour period after sunset, and Defendants recorded a false later time to prosecute him. Id. ¶¶ 47, 48, 50, 62.

         The Court finds Plaintiff sufficiently alleges a claim for false arrest/imprisonment ...


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