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Acevedo v. City of Farmersville

United States District Court, E.D. California

July 9, 2019

LUIS ACEVEDO, Plaintiff,
v.
CITY OF FARMERSVILLE, a governmental entity; Unknown CITY OF FARMERSVILLE POLICE OFFICERS named herein as DOES 1-50; and ROES 1-50 inclusive, Defendants.

          MEMORANDUM DECISION AND ORDER RE DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS (ECF NO. 6)

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE

         I. PRELIMINARY STATEMENT TO PARTIES AND COUNSEL

         Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Harris to address this Court's inability to accommodate the parties and this action. The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. Chief District Judge Lawrence J. O'Neill, who must prioritize criminal and older civil cases.

         Civil trials set before Chief Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Chief Judge O'Neill is unavailable on the original date set for trial. Moreover, this Court's Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the Nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from inside or outside the Eastern District of California.

         II. INTRODUCTION

         Plaintiff Luis Acevedo brings this action against Defendants City of Farmersville, Unknown City of Farmersville Police Officers named as Does 1-50, and Roes 1-50. This action arises out of Plaintiff's encounter with the Doe/Roe Defendants. Plaintiff alleges causes of action for violation of his constitutional rights pursuant to 42 U.S.C. § 1983 (“§ 1983”) and state law. Defendants move to dismiss all of Plaintiff's claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the Court GRANTS IN PART AND OTHERWISE DENIES Defendants' motion to dismiss Plaintiff's complaint.

         III. BACKGROUND

         A. Factual Allegations

         Plaintiff is a resident of Farmersville, California. ECF No. 1 ¶ 13. On or about April 16, 2018, Plaintiff pleads that he went to the Farmersville police station to report that his live-in girlfriend had struck him at his Farmersville residence. Id. ¶ 14. Farmersville officers allegedly advised Plaintiff to proceed to a friend's house near his residence and await further contact from the City of Farmersville police department. Id. A short time later, Plaintiff claims Farmersville officers arrived and advised Plaintiff that he was being detained, despite his status as the reporting party and victim. Id. Plaintiff pleads that after he was informed that he was being detained, a Farmersville officer without need or provocation, executed a swift and highly forceful kick to Plaintiff's legs, toppling Plaintiff, and thereby causing a severe fracture in Plaintiff's left leg, related problems in Plaintiff's right leg, and subsequently, internal injuries. Id. ¶ 15. Plaintiff claims that at no time did Farmersville or its officers provide any medical treatment to Plaintiff. Id. ¶ 16. Defendants allegedly forced Plaintiff to walk despite Plaintiff informing them that he had suffered a severe injury. Id. Plaintiff pleads that, after causing the severe fracture to Plaintiff's left leg, Plaintiff was taken to the Bob Wiley Detention Facility run by the Tulare County Sheriff's Office. Id. ¶ 17. Defendants allegedly did not inform or request that Plaintiff be provided medical treatment at the Sheriff's infirmary. Id.

         In October 2018, Plaintiff submitted a timely tort claim to Defendants. Id. ¶ 18. Plaintiff pleads that his counsel only received a letter from Defendants' insurer stating the insurer would investigate. Id. The claim was subsequently deemed denied by operation of law. Id.

         B. Procedural Background

         Plaintiff filed his Complaint on December 27, 2018 in this Court. ECF No. 1. Plaintiff brings claims against the City of Farmersville, Unknown City of Farmersville Police Officers, named as Does 1-50, and other governmental entities or persons allegedly responsible for Plaintiff's injuries, named as Roes 1-50. ECF No. 1 ¶¶ 3-4, 6. Plaintiff asserts nine causes of action: (1) assault, against all Defendants; (2) battery, against all Defendants; (3) intentional infliction of emotional distress (“IIED”), against all Defendants; (4) violation of 42 U.S.C. § 1983 for unlawful assault and battery in violation of the Fourth Amendment, against all Defendants; (5) violation of 42 U.S.C. § 1983 under a theory of Monell liability for unlawful assault and battery in violation of the Fourth Amendment, against all Defendants; (6) violation of California Civil Code § 52.1 (the “Bane Act”), against all Defendants; (7) violation of the Unruh Act, against all Defendants; (8) negligent hiring and supervision, against Defendant City of Farmersville; (9) negligent training, against Defendant City of Farmersville. Defendants filed this motion to dismiss on February 19, 2019. ECF No. 6. Plaintiff opposed the motion. ECF No. 8. Defendants filed a reply. ECF No. 9. Pursuant to Local Rule 230(g), the Court determined that this matter was suitable for decision on the papers and took it under submission on March 15, 2019. ECF No. 10.

         IV. LEGAL STANDARD

         A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the opposing party's pleadings. Dismissal of an action under Rule 12(b)(6) is proper where there is either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the pleading party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The inquiry is generally limited to the allegations made in the complaint. Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

         Under Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff is required to allege “enough facts to state a claim to relief that is plausible on its face.” Id. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

         While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged[.]” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In practice, “a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562. In other words, the complaint must describe the alleged misconduct in enough detail to lay the foundation for an identified legal claim.

         “Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). To the extent that the pleadings can be cured by the allegation of additional facts, the Court will afford the plaintiff leave to amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).

         V. DISCUSSION

         Defendants move to dismiss Plaintiff's causes of action on the grounds that: (1) punitive damages claims against the City of Farmersville are barred; (2) Plaintiff failed to plead with sufficient particularity his assault and battery claims; (3) Plaintiff failed to plead with sufficient particularity his IIED claim; (4) Plaintiff failed to plead with sufficient particularity his § 1983 claims; (5) Plaintiff's state law claims, excluding the assault and battery claims, should be dismissed for failure to follow the California Tort Claims Act; (6) Plaintiff's state law negligent hiring, supervision, and training claims fail to state a claim. Plaintiff opposes some of Defendants' arguments, and otherwise fails to address the others.[1]

         A. Requests for Punitive Damages

         Plaintiff's first, second, third, and fourth claims, as well as Plaintiff's prayer for relief, seek punitive damages. Defendants argue that Plaintiff's claims for punitive damages must be dismissed. Plaintiff offers no argument in opposition. Municipalities are not liable for punitive damages for claims brought under § 1983 unless expressly authorized by statute. See Kentucky v. Graham, 473 U.S. 159, 167 n. 13 (1985); Smith v. Wade, 461 U.S. 30, 36 n. 5 (1983); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir. 1996). State officials sued in their official capacity under § 1983 are also immune from punitive damages. See Mitchell, 75 F.3d at 527. Plaintiff does not plead whether the Doe/Roe Defendants are sued in their individual or official capacities.

         Similarly, under California law, public entities are not liable for punitive damages unless authorized by statute. See Cal. Gov. Code § 818; United Nat. Maint., Inc. v. San Diego Convention Ctr., Inc., 766 F.3d 1002, 1012 (9th Cir. 2014).

         Plaintiff does not identify a statute that would permit punitive damages for his § 1983 causes of action against the City of Farmersville and any Doe/Roe Defendants he intends to sue in their official capacities. And Plaintiff does not identify a California statute authorizing punitive damages for his state law causes of action against the City of Farmersville and any Doe/Roe Defendants he intends to sue in their official capacities. Therefore, Plaintiff's claims for punitive damages against Defendant City of Farmersville are DISMISSED with prejudice. Plaintiff's claims for punitive damages against remaining Doe/Roe defendants will also be DISMISSED with prejudice to the extent the Doe/Roe Defendants are sued in their official capacities.

         B. Failure to State a Claim for Assault

         Plaintiff's first cause of action is for assault against all defendants. A civil assault is a “demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.” Steel v. City of San Diego, 726 F.Supp.2d 1172, 1189 (S.D. Cal. 2010); see Lowry v. Standard Oil Co., 63 Cal.App.2d 1, 6-7 (1944). Thus, the tort of assault is based on a person's belief that he is about to be touched in an offensive manner by another. See CACI § 1301. Tortious assault “recognizes the right of the individual to peace of mind, to live without fear of personal harm.” Thing v. La Chusa, 48 Cal.3d 644, 649 (1989). “The tort of assault is complete when the anticipation of harm occurs.” Steel, 726 F.Supp.2d at 1189; Kiseskey v. Carpenters' Trust for So. Cal., 144 Cal.App.3d 222, 232 (1983). “Mere words, however threatening, will not amount to an assault.” Steel, 726 F.Supp.2d at First, Defendants argue for all of the claims involving the officers that Plaintiff fails to plead sufficient facts to identify the Doe/Roe officers and thus state claims against them. The Ninth Circuit has held the use of “Doe” defendants at early stages of a case is acceptable:

As a general rule, the use of ‘John Doe' to identify a defendant is not favored. . . . However, situations arise, such as the present, where the identity of alleged defendants will not be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.

Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (internal citations and quotation marks omitted). Plaintiff pleads that the true names of Does 1-50 and Roes 1-50 are unknown to Plaintiff, but that the names, positions, and identification numbers of at least the Officer Defendants, Does 1-50, are known to the City of Farmersville and its police department. See ECF No. 1 ¶¶ 5-6. Discovery would likely quickly uncover the identities of the Doe/Roe Defendants, given that Plaintiff pleads a specific date, location, and police department involved in a discrete event. Nevertheless, the Court cautions that if Plaintiff ultimately fails to conduct discovery and seek leave to amend in a timely fashion, such leave may be denied and the Doe/Roe Defendants dismissed. See Demoura v. Ford, No. 1:09-CV-01344-LJO, 2012 WL 2577554, at *9 (E.D. Cal. July 3, 2012) (denying leave to amend due to plaintiff's failure to discover identities of doe defendants and seek leave to amend in a timely fashion); Zakowska v. AAA Nevada Fire & Cas., Ins. Co., No. 2:09-CV-00181-PMP-LRL, 2009 WL 10693579, at *1 (D. Nev. June 19, 2009) (striking allegations because “Plaintiffs fail to allege that the Does and Roes are identifiable individuals who performed specific actions which support the Complaint.”). Therefore, Plaintiff's claims against the Doe/Roe Defendants will not be dismissed for the failure to plead the officers' identities at this time.

         Second, Defendants argue that Plaintiff's assault claim is conclusory and merely a formulaic recitation of the elements of assault. The Court agrees. Plaintiff does not plead any particularized facts to support his own “belief that he is about to be touched in an offensive matter, ” CACI § 1301, or facts otherwise showing his “anticipation of harm.” Steel, 726 F.Supp.2d at 1189; see also Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (“The district court properly granted summary judgment on the assault claim because Williams' behavior never placed Austin in apprehension of imminent offensive contact.”); Wilson v. City of Bakersfield, No. 1:16-CV-00387-JLT, 2016 WL 2997496, at *8 (E.D. Cal. May 23, 2016) (“Plaintiffs do not allege that Mr. Wilson did, in fact, suffer any apprehension during either encounter with the police officers. Accordingly, Plaintiffs fail to allege facts sufficient to support a claim for assault.”).

         Indeed, the most reasonable inference from Plaintiff's factual recitation of the “swift” kick executed “without need or provocation” is that Plaintiff did not anticipate harm or that he was about to be touched in an offensive manner. See ECF No. 1 ¶ 15. And Plaintiff offers no particularized facts showing Defendants' “demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present, ” Steel, 726 F.Supp.2d at 1189, other than to say that the kick was unnecessary and unprovoked. See ECF No. 1 ¶ 15. Even accepting all of the pleaded facts as true, and making every reasonable inference in his favor, Plaintiff fails to plead sufficient particularized facts to state his assault claim. Therefore, Plaintiff's assault claim will be DISMISSED without prejudice.

         C. Failure to State a Claim for Battery

         Plaintiff's second claim is for battery, against all defendants. The elements of a civil battery under California law are: (1) the defendant intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff's person; (2) the plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to the plaintiff. See Brown v. Ransweiler, 171 Cal.App.4th 516, 526-27 (2009); Fluharty v. Fluharty, 59 Cal.App.4th 484, 497 (2004). “A bodily contact is offensive if it offends a reasonable sense of personal dignity.” See Judicial Council of Cal., Civil Jury Instructions (“CACI”), Comment to § 1300 (Fall 2011).

         In the context of a peace officer's use of force, “[a] state law battery claim is a counterpart to a federal claim of excessive use of force, ” and similar standards apply. Brown, 171 Cal.App.4th at 527; see also Edson v. City of Anaheim, 63 Cal.App.4th 1269, 1274-75 (1998) (looking to the standards of a federal excessive force claim to determine the burden of proof for a state law battery claim against an officer). The Fourth Amendment requires police officers making an arrest to use only an amount of force that is objectively reasonable in light of the circumstances facing them. Tennessee v. Garner, 471 U.S. 1, 7-8 (1985). Neither tackling nor punching a suspect to make an arrest necessarily constitutes excessive force. Graham v. Connor, 490 U.S. 386, 396 (1989) (“‘Not every push or shove, even if it may seem unnecessary in the peace of the judge's chambers,' ... violates the Fourth Amendment”) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)). But “even where some force is justified, the amount actually used may be excessive.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir.2002). The question in all cases is whether the use of force was “objectively reasonable in light of the facts and circumstances confronting” the arresting officers. Graham, 490 U.S. at 397 (internal quotation marks omitted); see also Brown, 171 Cal.App.4th at 527; Edson, 63 Cal.App.4th at 1272.

         To determine whether a specific use of force was reasonable, a court must balance “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake.” Id. at 396 (internal quotation marks omitted). Relevant factors to this inquiry include, but are not limited to, “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.; see also Forrester v. City of San Diego, 25 F.3d 804, 806 n. 2 (9th Cir.1994). When appropriate, a reasonableness determination must also make “allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97.

         Here, Plaintiff alleges that he initiated contact with the police to report that he was a victim of domestic violence. However, Plaintiff pleads that after the Defendant officers arrived, they informed Plaintiff that he was being detained and, “without need or provocation, executed a swift and highly forceful kick to Plaintiff's legs, toppling Plaintiff, and thereby causing a severe fracture in Plaintiff's left leg, related problems in Plaintiff's right leg, and subsequently, internal injuries.” ECF No. 1 ¶ 15. Unquestionably, Plaintiff's battery claim and allegations of excessive force as a whole are sparsely pleaded. Nevertheless, taking all of the pleaded facts as true for purposes of this motion to dismiss, and making every reasonable inference in Plaintiff's favor, Plaintiff pleads sufficient facts to state a battery claim against the officers and the vicariously liable City of Farmersville. If it is true that, upon informing Plaintiff he was being detained, officers “without need or provocation” kicked Plaintiff's legs, such use of force is not objectively reasonable. There are no facts suggesting Plaintiff committed any crime, and Plaintiff in fact alleges he was the victim of a crime. And there are no facts permitting an inference that Plaintiff was actively resisting arrest, attempting to evade arrest by flight, or posed an immediate or significant threat to the safety of the officers. Indeed, there are no facts permitting an inference that any use of force whatsoever was required. Thus, as pleaded, there is minimal government interest at stake in allowing such a use of force, and an unneeded and unprovoked kick causing severe injury is a serious intrusion upon Plaintiff's Fourth Amendment rights. See P.B. v. Koch, 96 F.3d 1298, 1303 n.4 (9th Cir. 1996) (noting that where there is no need for force, use of force is objectively unreasonable); Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 1115-16 (9th Cir. ...


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