A Bolton v. City of Berkeley

          ORDER ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH LEAVE TO FILE THIRD AMENDED COMPLAINT RE: DKT. NOS. 21, 25

          William H. Orrick United States District Judge

         INTRODUCTION

         To move forward, by December 13, 2019 plaintiff A. Bolton must either tell me when and where he was born, and what full legal name his parents gave to him at birth, and then we will use that in the caption of the case, or, if he wants to proceed anonymously, give me a good reason why I should allow him to do so. Bolton can write “REQUEST FOR SEALING” to confidentially file this information with me. I will then rule on whether he may proceed with the Third Amended Complaint using his full name or anonymously.^[1]

         Once I resolve that issue so that the case may begin, Bolton may proceed with the following three claims: (i) assault and battery; (ii) violation of the Ralph Civil Rights Act under Cal. Civ. Code § 51.7(a); and (iii) violation of the Tom Bane Civil Rights Act under Cal. Civ. Code § 52.1. But if Bolton wishes to also proceed on his other claims, he must file a Third Amended Complaint by January 7, 2020 and make the necessary fixes according to the guidance in this Order. To do this, I recommend Bolton make an appointment for free limited legal assistance from the Legal Help Center by calling (415) 782-8982, emailing federalprobonoproject@sfbar.org, or signing up for an appointment in the appointment book located on the table outside the door of the Legal Help Center. More information about the Legal Help Center is provided at the end of this Order.

         BACKGROUND

         I. PROCEDURAL BACKGROUND

         On January 30, 2019, Bolton filed a Complaint in propria persona against the City of Berkeley, Police Officer Jonathan Loeliger, Officer Jessie Grant, and Sergeant Peter Hong in the Alameda County Superior Court. Notice of Removal, Ex. A [Dkt. No. 1-1]. Bolton listed his name as “A. Bolton” and did not provide his full legal name. Id. On August 21, 2019, the City of Berkeley filed a Notice of Removal and removed this action to this court. Id.

         On September 16, 2019, defendants filed a motion to dismiss the Complaint. Dkt. No. 13. On September 27, 2019, Bolton filed a First Amended Complaint, adding defendant David Brannigan, Chief of the Berkeley Fire Department. See First Amended Complaint (“FAC”) [Dkt. No. 19]. The court issued an order denying defendants' motion to dismiss as moot, and required defendants to respond to the FAC within 14 days. Order Denying Motion to Dismiss as Moot [Dkt. No. 20]. In its motion to dismiss the FAC, defendants seek dismissal of all causes of action except the second cause of action (assault and battery), the third cause of action (violation of the Ralph Civil Rights Act under Cal. Civ. Code § 51.7(a)), and the ninth cause of action (violation of the Tom Bane Civil Rights Act under Cal. Civ. Code § 52.1). Motion to Dismiss FAC (“MTD”) [Dkt. No. 21] 1-2.

         On the day Bolton's response was due, Bolton filed a Second Amended Complaint and sought leave to file it. Second Amended Complaint (“SAC”) [Dkt. No. 25-2]. The FAC had fifteen causes of action, and the SAC now has forty-one causes of action. Id. The SAC realleged the three causes of action that are not challenged by defendants in their motion to dismiss. See Id. ¶¶ 18-23, 24-30, 282-287 (causes of action 2, 3 and 34). These three causes of action will proceed forward. This Order addresses the other causes of action should Bolton choose to file a Third Amended Complaint.

         II. FACTUAL BACKGROUND

         Bolton's FAC alleges that he was arrested by Berkeley police on January 27, 2018. FAC ¶¶ 1, 12-A. He claims that he was standing at the corner of University and San Pablo Avenue in Berkeley when police officers, identified as Officer Grant and Officer Loeliger, “suddenly[] ambushed” him and placed him in handcuffs “without any lawful cause.” Id. ¶ 12-A. Bolton asserts that he pleaded for help but Grant told him to “shut up” and “began beating [him].” Id.

         Bolton alleges that Grant “by sexual battery, beat and ripped off [his] clothes.” FAC ¶ 12-B. He claims that Grant and Loeliger handcuffed him and destroyed his bicycle. Id. He contends that “bystanders came” and “spoke” but “only shortly interrupt[ed]” the officers' “abuse and laughter.” Id. Bolton asked the officers during the abuse if they were rapists. Id. He asserts that Grant shouted in the open air that Bolton was a “serial killer.” Id. ¶ 12-F. He also claims that the officers “shined blinding lights” directed at his eyes to further humiliate him. Id. ¶ 12-D. Grant and Loeliger allegedly flipped Bolton's bike to search for its serial number. Id.

         Bolton alleges that after some time Sergeant Hong arrived. FAC ¶ 12-E. He claims that he pleaded Hong to help him, but Hong delayed by talking instead of acting immediately to give Bolton the urgent medical care he knew he needed. Id. He asserts that paramedics eventually came on the scene “after pictures” were taken. Id.

         The paramedics moved Bolton from the sidewalk and into the ambulance. FAC ¶ 12-G. When paramedics allegedly asked the officers why Bolton was seriously injured, the officers replied “he was riding a bike, ” which Bolton claims is not true. Id. After the paramedics examined Bolton only for “merely seconds, ” he contends that the paramedics opened the ambulance doors and yelled into open air that he was “playing a game.” Id. ¶ 12-I.

         He asserts that he continued to plead for help, and that the officers agreed to let him talk to the city “police superior” if he agreed to be detained for “three hours or less.” FAC ¶ 12-J. He agreed to these terms. Id. He claims that the officers “refitted previous illegally taken” belongings back to him “as if to hide [his] horrible sexually battered state, before entering jail, and cameras.” Id.

         Bolton claims that he requested physical medical care at the jail but defendants instead made it into a “fictional mental health matter” and wrongfully put him in a “psych hold.” FAC ¶¶ 12-K, 12-L. He contends that he was not given water, food, shoes or a phone call. Id. ¶ 12-J.

         Bolton also asserts that this incident is part of defendants' “pre-textual stop campaign” of stalking and harassing him. FAC ¶ 12-M. He lists seven other instances when police officers stopped him, stating the time of day and cross streets of where each encounter took place and explaining that he was simply on his way to meet a friend before each encounter. Id. Bolton claims that doe defendants of City of Berkeley, and the Berkeley Police and Fire Departments engage in “racial profiling.” Id. ¶ 12-N-12-T. Bolton asserts that he served an Administrative Claim for Damages on the City of Berkeley on July 20, 2018, and that the City rejected the claim on August 8, 2018. Id. ¶ 10.

         The factual allegations stated in the FAC and SAC are largely the same, except that Bolton adds one paragraph alleging defendants also falsified reports and records related to this incident and other encounters. SAC ¶ 12-H. The SAC also adds Berkeley City Manager, Dee Williams-Ridley, for claims related to the alleged failure to properly train and supervise Berkeley officers, and to the alleged pattern or practice of excessive force and racial profiling. SAC ¶¶ 97, 103, 153.^[2]

         LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics, ” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555, 570.

         In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

         If the court dismisses the complaint, it “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.” See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making this determination, the court should consider factors such as “the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment.” See Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989).

         DISCUSSION

         I. FAILURE TO PROVIDE FULL LEGAL NAME

         Federal Rule of Civil Procedure 10(a) requires that every complaint “name all the parties.” Fed.R.Civ.P. 10(a). Pseudonyms are allowed only the “‘unusual case' when nondisclosure of the party's identity ‘is necessary . . . to protect a person from harassment, injury, ridicule or personal embarrassment.'” Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir. 2000) (quoting United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1981)). Many federal courts, including the Ninth Circuit, have permitted parties to proceed anonymously when special circumstances justify secrecy. Id. at 1067. A court should determine the need for anonymity by evaluating the following factors: (1) the ...