Lucas v. County of Fresno

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS DOC. NO. 11

         This matter is before the court on the motion to dismiss filed on behalf of defendants County of Fresno (“Fresno County”) and Jared Mullis. (Doc. No. 11-1.) On April 16, 2019, the motion came before the court for hearing. Attorney Khaldoun A. Baghdadi appeared on behalf of plaintiffs Jami Lucas; Oscar Gonzalez; Ashley Lucas; Gianna Lucas; E.L., a minor, by and through his guardian ad litem, Jami Lucas; and the Estate of Rodney Lucas, by and through its representative, Jami Lucas. Attorney Michael J. Haddad appeared on behalf of plaintiffs John Lucas and Ruth Arieas. Attorneys James Weakley and Brande L. Gustafson appeared on behalf of defendants. Having reviewed the parties' submissions and heard from counsel, defendants' motion will be granted in part and denied in part.

         PROCEDURAL BACKGROUND

         This action proceeds on the first amended complaint (“FAC”) filed on December 11, 2018. (Doc. No. 9.) Plaintiffs allege violations of substantive due process rights, loss of familial association, and a Monell claim against Fresno County. Defendants moved to dismiss on December 24, 2018. (Doc. No. 11-1.) Plaintiffs filed an opposition to the motion to dismiss on April 2, 2019. (Doc. No. 23.) Defendants Jared Mullis and Fresno County filed separate replies on April 9, 2019. (Doc. Nos. 24-25.)

         FACTUAL BACKGROUND

         In their FAC, plaintiffs allege as follows. Sergeant Rod Lucas (the “decedent”) was accidentally shot and killed by defendant Deputy Jared Mullis^[1] on October 31, 2016. (FAC at ¶ 11.) At the time of the incident, both were on-duty in the narcotics room at the offices of the Fresno County Sherriff (“FCS”); two other law enforcement officers, Special Agent John Tilley and Deputy Carl McSwain, were nearby and looking on. (Id. at ¶ 15.) While in the narcotics room, the decedent and Deputy Mullis began to play-fight using Mixed Martial Arts moves on each other. During the playfight, the decedent's backup pistol fell out of its holster and onto the ground, at which point he retrieved and re-holstered his weapon. (Id. at ¶ 13.)

         Deputy Mullis, a certified armorer with the FCS, then went to his desk and retrieved his backup weapon, a Smith & Wesson M&P®45 SHIELD™ pistol inside a plastic Kydex holster. (Id. at ¶ 2, 14.) The weapon was fully loaded, with a chambered bullet, and lacked an external thumb safety. (Id. at ¶ 14.) Deputy Mullis returned to the narcotics room to show the decedent his pistol as part of a “serious conversation about safety concerns” related to the decedent's “ill-fitting holster” and to “educate Sgt. Lucas by demonstrating how effective his personal holster was in retaining his service weapon compared to the department-issued holster.” (Doc. No. 23 at 13.) As part of his demonstration, Deputy Mullis held his pistol out in front of him with the barrel pointed at the decedent. (FAC at ¶ 16.) As Deputy Mullis returned his pistol to his holster, he shot the decedent in the chest. (Id. at ¶ 19.) Although first aid was administered, the decedent succumbed to his injuries approximately thirty minutes later, at 4:11 p.m. (Id. at ¶ 20.)

         LEGAL STANDARD

         The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “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 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).

         In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 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 676 (“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 which 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).

         DISCUSSION

         Plaintiffs allege two causes of action: 1) violations of 42 U.S.C. § 1983 based upon a Fourteenth Amendment substantive due process violation by defendant Deputy Mullis, leading to the loss of First and Fourteenth Amendment rights to familial relationships; and 2) a violation of 42 U.S.C. § 1983 by Fresno County on the basis of Monell liability. (Doc. No. 9 at 15-21.)

         A. Familial Association

         In their first cause of action, plaintiffs allege that they were deprived of the “constitutional right to familial relationships, companionship, society, and support of one another, as secured by the First and Fourteenth Amendments.” (Doc. No. 9 at 15.) Defendants move for dismissal of this claim to the extent it is based on the First Amendment, arguing that plaintiffs' claims for the deprivation of familial relationships are duplicative of and are more precisely and properly pled under the Fourteenth Amendment. (Doc. No. 11-1 at 5-6.)

         Courts, however, are not to dismiss a statement of a claim simply because it is offered in the alternative of another claim. See Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.”). Moreover, the Ninth Circuit has concluded that a claim for the deprivation of the right to a familial relationship may be simultaneously asserted under both the First and Fourteenth Amendments. See Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir. 2018) (holding that “claims under both the First and Fourteenth Amendment for unwarranted interference with the right to familial association could survive a motion to dismiss”); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (holding that plaintiffs adequately alleged violations of the First and Fourteenth Amendments based on a mother and son's right to familial association), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

         Defendants also argue that plaintiffs fail to allege sufficient associational interests to bring a claim for deprivation of familial relationship under the First Amendment. (Doc. No. 11-1 at 5.) However, “the First Amendment protects those relationships, including family relationships, that presuppose ‘deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.'” Lee, 250 F.3d at 685 (9th Cir. 2001) (quoting Board of Dir. v. Rotary Club, 481 U.S. 537, 545 (1987); see also Mann v. City of Sacramento, 748 Fed.Appx. 112, 115 (9th Cir. 2018) (concluding that the right of intimate association is analyzed “in the same manner regardless whether we characterize it under the First or Fourteenth Amendments”).^[2]

         As the decedent's wife, children, and parents, plaintiffs have adequately plead their associational interests sufficient to withstand a motion to dismiss. (Doc. Nos. 11-1 at 5-6; 25 at 2); see, e.g., Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1169 (9th Cir. 2013) (“[I]n past cases, we have recognized a parent's right to a child's companionship without regard to the child's age.”) (collecting cases); Estate of Osuna v. Cty. of Stanislaus, 392 F.Supp.3d 1162, 1176 (E.D. Cal. 2019) (“As the wife and son of the decedent, [plaintiffs] possess constitutionally protected liberty interests in the companionship and society of their husband and father, respectively.”); Morales v. City of Delano, 852 F.Supp.2d 1253, 1273-74 (E.D. Cal. 2012) (finding that spouses and children possess a constitutional interest in familial companionship with their spouse and parents).

         Therefore, defendants' motion to dismiss plaintiff's First and Fourteenth Amendment claims due to duplication and failure to plead sufficient associational interests will be denied.

         B. Whether Deputy Mullis Was Acting Under Color of State Law

         Defendants argue that plaintiffs have failed to allege sufficient facts demonstrating that Deputy Mullis was acting under the color of state law when he allegedly shot the decedent and that the § 1983 claim against him must therefore be dismissed. (Doc. No. 11-1 at 6-7); see 42 U.S.C. § 1983 (providing that “[e]very person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress”).

         1. The Relevant Test

         According to defendants, the three-pronged test established in Anderson v. Warner should be applied in determining whether Deputy Mullis was acting under the color of state law:

First, the defendant's action must have been performed while the officer is acting, purporting, or pretending to act in the performance of his or her official duties. Second, the officer's pretense of acting in the performance of his duties must have had the purpose and effect of influencing the behavior of others. Third, the challenged conduct must be related in some meaningful way either to the officer's governmental status or to the performance of his duties.

451 F.3d 1063, 1068-69 (9th Cir. 2006) (internal quotation marks and citations omitted). Defendants contend that, under the Anderson test, Mullis was not acting under color of state law because he was not attempting to influence the decedent and was not exercising his responsibilities pursuant to state law. (Doc. No. 11-1 at 7.)

         However, this three-part test was employed in Anderson only to determine whether an off-duty employee was acting under color of state law. See Anderson, 451 F.3d at 1068-69 (“In the circumstances of this case, ” which involved an off-duty police officer assaulting a motorist who had rear-ended the officer's personal vehicle, “there are three critical requirements that must be satisfied” (emphasis added)). The Ninth Circuit has thereafter recognized that the test to be applied in determining whether an officer is acting under color of state law is a different one when the officer is on duty.

Under [Stanewich, McDade, and Anderson], a state employee who is on duty, or otherwise exercises his official responsibilities in an off-duty encounter, typically acts under color of state law. That is true even if the employee's offensive actions were illegal or unauthorized. A state employee who is off duty nevertheless acts under color of state law when (1) the employee “purport[s] to or pretend[s] to act under color of law, ” (2) his “pretense of acting in the performance of his duties . . . had the purpose and effect of influencing the behavior of others, ” and (3) the harm inflicted on plaintiff “‘related in some meaningful way either to the officer's governmental status or to the performance of his duties.'” On the other hand, a government employee does not act under color of state law when he pursues private goals via private actions.

Naffe v. Frey, 789 F.3d 1030, 1037 (9th Cir. 2015) (emphasis added and omitted) (citations omitted) (applying the Anderson test in a case where the defendant, a county employee, was blogging off-duty in his personal capacity).

         Because defendant Deputy Mullis was on-duty at the time of the incident that lies at the heart of this lawsuit, the Anderson test does not strictly govern the determination of whether he was acting under the color of state law. The court, mindful that there is no “rigid formula” for determining whether an official is acting under color of state law, instead looks holistically at “the nature and circumstances of the officer's conduct and the relationship of that conduct to the performance of his official duties.” Anderson, 451 F.3d at 1068 (internal citations omitted) (citing Ouzts v. Md. Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974) and Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995)).

         For example, the Ninth Circuit has held:

A person acts under color of state law[] if he exercise[s] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the state. Thus generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.”

Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476, 479 (9th Cir. 1991) (internal quotations and citations omitted) (concluding that a refugee counselor acted under color of state law when he raped refugees under the guise of helping them obtain employment); see also Naffe, 789 F.3d at 1036 (noting that a state employee is acting under color of state law when he “wrongs someone ‘while acting in his official capacity or while exercising his responsibilities pursuant to state law'”) (citing West v. Atkins, 487 U.S. 42, 50 (1988)).

         2. Under the Facts Alleged, Mullis's Actions Were Committed While Acting Under Color of State Law

         Plaintiffs allege that Deputy Mullis's actions were performed while he was on-duty in the FCS's office and in the course of demonstrating to the decedent proper gun safety practices, a responsibility consistent with his position as a certified armorer. (FAC at ¶ 2, 11.)

         Defendants counter, arguing that the incident “could have just as easily occurred between private citizens comparing holsters on their concealed carry weapons at a range and does not amount to the additional indicia of state authority necessary to conclude that Deputy Mullis's conduct was under color of law.” (Doc. No. 11-1 at 7.) In support of this contention, defendants rely on a decision of the First Circuit where a police officer accidentally shot another officer while “horsing around.” Martinez v. Colon, 54 F.3d 980, 987 & n.5 (1st Cir. 1995). There, the First Circuit concluded that it was not

reasonable to hold that every use of a policeman's gun, even in the course of purely personal pursuits, creates a cause of action under section 1983. Instead, we are of the view that the context in which a service revolver is used, not just the mere fact of its use, must be consulted to determine the constitutional relevance of the officer's conduct.

Martinez, 54 F.3d at 987-88.

         It is the case that an individual does not act under color of state law merely because he is a police officer. See Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001) (“Just because Collier is a police officer does not mean that everything he does is state action.”); Van Ort v. Estate of Stanewich, 92 F.3d 831, 838 (9th Cir. 1996) (“The district court was not required to find that Stanewich acted under color of state law merely because he was a law enforcement officer.”).

         However, in resolving the pending motion to dismiss, consideration of several allegations of the FAC persuade the court that plaintiff has adequately pled that defendant Deputy Mullis was acting under color of state law at the relevant time. First, defendant Deputy Mullis was on duty, apparently in uniform, inside the FCSO narcotics room at the time of the incident with his fellow officers and was permitted, due to his position, to be in possession of and to handle a loaded firearm. See Martinez, 54 F.3d at 992 (Bownes, J., dissenting). Moreover, defendant Deputy Mullis shot the decedent, not while involved in “purely personal pursuits, ” but allegedly while trying to show the decedent how to safely secure a pistol in a holster. (See FAC at 4-5, ¶ 13-16; see also Doc. No. 23 at 13.) Ensuring the proper maintenance, storage, and operation of firearms would seem to clearly be responsibilities that lay squarely in the ambit of any police officer, let alone the armorer of a Sheriff's Department. Characterizing such activities as a “purely personal pursuit” would not be accurate or reasonable. Thus, in the undersigned's view, plaintiff's allegations provide an adequate basis upon which to claim that defendant Deputy Mullis' actions were related to the performance of his official duties. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 838 (9th Cir. 1996).^[3]

         For these reasons, the court concludes that plaintiffs have alleged facts that, if proven true, would show that defendant Deputy Mullis' ...