United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO
DISMISS Re: Dkt. Nos. 15, 17, 18
Haywood S. Gilliam, Jr. United States District Judge.
proceeding pro se, bring this civil rights action against the
City of Antioch, Contra Costa County, and individual
employees of both the City and County,  following the
death of Nathan Banks. See Dkt. No. 1
(“Complaint” or “Compl.”).
before the Court are three motions to dismiss
Plaintiffs’ complaint for failure to state a claim: the
first, filed by Defendants Livingston, Grove, Alexander, and
Contra Costa (collectively, “County Defendants”),
see Dkt. No. 15 (“County Mot.”); the
second, filed by Defendants Mortimer, Colley, and Antioch
(collectively, “City Defendants”), see Dkt. No.
17 (“City Mot.”); and the third filed by
Defendant Guichard, see Dkt. No. 18 (“Guichard
Mot.”). The Court finds this matter appropriate for
disposition without oral argument and the matter is deemed
submitted. See Civil L.R. 7-1(b). Having carefully
considered the parties’ arguments, the Court
GRANTS IN PART and DENIES IN
PART Defendants’ motions to dismiss.
to the complaint, at approximately 11:30 p.m. on June 16,
2017, decedent Nathan Banks was sitting in the passenger seat
of a parked vehicle with Jennifer Caldwell in Antioch,
California. See Compl. ¶ 27. Antioch Police
Officer Michael Mortimer parked alongside the vehicle, first
addressing Caldwell, who was sitting in the driver seat.
Id. ¶¶ 28–30. Mortimer then walked
to the passenger door, and-although Mortimer later
acknowledged he did not feel threatened-“suddenly
struck Nathan in the head with a flashlight and aimed his gun
at Nathan.” Id. ¶¶ 31–35,
37–38. As a result, Nathan suffered “a deep
laceration to his forehead and a fractured skull[, ]
[m]ultiple blunt force head injuries on the right, fractures
at the base of his skull[, ] and a five (5) inch long
fracture over the top of the skull.” Id.
hitting Nathan with the flashlight, Mortimer allowed Nathan
to exit the vehicle, but Nathan fell to the ground.
Id. ¶ 40. “Fearing for his life, ”
Nathan then “tried to flee.” Id. ¶
41. Without calling for backup, Mortimer chased Nathan on
foot and shot him at least three times. Id.
¶¶ 42–49. After firing these fatal shots,
Mortimer and K9 Officer Ryan White also “deployed a
police dog to bite Nathan.” Id. ¶¶
18, 50, 105. Plaintiffs allege that home security videos and
third-party witnesses captured much of these events. See
Id . ¶¶ 23, 43, 45.
Nathan’s death, the Contra Costa District
Attorney’s Office investigated the incident.
Id. ¶¶ 52, 55. However, Plaintiffs allege
that there were serious problems with the investigation,
including possible witness intimidation and evidence
tampering. Specifically, although there were third-party
witnesses to the incident, Defendants did not interview them;
Defendants asked leading questions and relied on hearsay
evidence; the pathology report omitted key injuries,
including the fractures to Nathan’s skull and that the
gun shots struck Nathan from behind; and additional
government reports conflicted with the Antioch police
officers’ own reports and ignored other conflicting
evidence. See Id . ¶¶ 19–21,
52–86, 89. Plaintiffs also allege that those involved
in the investigation had themselves been the subject of prior
misconduct claims. Id. ¶ 71.
the City reported Nathan’s death as “justifiable
homicide, ” and no criminal charges were filed.
Id. ¶¶ 87–88. Plaintiffs further
allege that no investigative reports related to
Nathan’s death have been released, despite the County
District Attorney’s prior announcement that such
reports would be released if no charges were filed.
Id. ¶¶ 22–23, 25, 72, 83,
89–91. Plaintiffs first filed government claims with
the City and County, but both were rejected. Id.
on these alleged facts, Plaintiffs bring causes of action
under 42 U.S.C. § 1983 for (1) unlawful seizure; (2)
excessive force; (3) municipal liability; (4) interference
with Plaintiffs’ access to the courts; as well as
causes of action (5) under California Civil Code § 52.1;
and for (6) battery. Id. ¶¶ 94–137.
Plaintiffs seek damages, attorneys’ fees and costs, as
well as funeral and burial costs. Id. at 25
(“Prayer for Relief”).
Rule of Civil Procedure 8(a) requires that a complaint
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A defendant may move to dismiss a
complaint for failing to state a claim upon which relief can
be granted under Rule 12(b)(6). “Dismissal under Rule
12(b)(6) is appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a
cognizable legal theory.” Mendiondo v. Centinela
Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To
survive a Rule 12(b)(6) motion, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible when a 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).
reviewing the plausibility of a complaint, courts
“accept factual allegations in the complaint as true
and construe the pleadings in the light most favorable to the
nonmoving party.” Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
Nevertheless, courts do not “accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences.” In re Gilead Scis.
Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)
(quoting Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir. 2001)).
“[p]leadings must be construed so as to do
justice.” Fed.R.Civ.P. 8(e). “[A] pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quotation omitted). In addition, “[i]n civil
rights cases where the plaintiff appears pro se, the court
must construe the pleadings liberally and must afford
plaintiff the benefit of any doubt.” Karim-Panahi
v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir.
1988). However, even a “liberal interpretation of a . .
. complaint may not supply essential elements of the claim
that were not initially pled.” See Ivey v. Bd. of
Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.
1982). “[P]ro se litigants are bound by the rules of
procedure, ” Ghazali v. Moran, 46 F.3d 52, 54
(9th Cir. 1995), which require “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a).
even if the court concludes that a 12(b)(6) motion should be
granted, the “court should grant leave to amend even if
no request to amend the pleading was made, unless it
determines that the pleading could not possibly be cured by
the allegation of other facts.” Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)
Court addresses threshold issues about Plaintiffs’
ability to bring the alleged causes of action against
Defendants, before addressing the substance of their
Authority to Bring Survival Actions
initial matter, the majority of Plaintiffs’ claims are
survival actions that seek to recover damages for
Nathan’s injuries rather than for Plaintiffs’ own
personal injuries. The Court, therefore, first analyzes
whether Plaintiffs have the authority to bring these survival
causes of action. See e.g., Safari Club
Int’l v. Rudolph, 862 F.3d 1113, 1117, n.1 (9th
Cir. 2017) (recognizing that the court has a duty “sua
sponte to ...