United States District Court, E.D. California
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' ...