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Banks v. Mortimer

United States District Court, N.D. California

September 23, 2019

GREGORY A BANKS, et al., Plaintiffs,
MICHAEL MORTIMER, et al., Defendants.


          Haywood S. Gilliam, Jr. United States District Judge.

         Plaintiffs, 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, [1] following the death of Nathan Banks. See Dkt. No. 1 (“Complaint” or “Compl.”).

         Pending 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.

         I. BACKGROUND

         According to the complaint, at approximately 11:30 p.m. on June 16, 2017, decedent Nathan Banks[2] 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. ¶ 36.

         After 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.

         Following 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.

         Publicly, 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. ¶ 93.

         Based 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[3]; (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[4] and costs, as well as funeral and burial costs. Id. at 25 (“Prayer for Relief”).


         Federal 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).

         In 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)).

         Additionally, “[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).

         Yet 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) (quotation omitted).


         The Court addresses threshold issues about Plaintiffs’ ability to bring the alleged causes of action against Defendants, before addressing the substance of their allegations.

         A. Authority to Bring Survival Actions

         As an 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 ...

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