United States District Court, N.D. California
A. BOLTON, Plaintiff,
CITY OF BERKELEY, et al., Defendants.
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
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.
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
email@example.com, 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
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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).
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.
FAILURE TO PROVIDE FULL LEGAL NAME
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 ...