United States District Court, N.D. California
ORDER GRANTING DEPUTY DEFENDANTS' MOTION TO
DISMISS Re: Dkt. Nos. 52, 53
William H. Orrick United States District Judge
Jearhamel Fanaro brings claims arising out of a brutal attack
that occurred in Contra Costa County's Martinez Detention
Facility. In addition to bringing suit against the County and
his inmate attackers, Fanaro seeks to hold Sheriff's
Deputies Omar De Leon and Antonio Rosas accountable for
allegedly facilitating his attack, or least overlooking
evidence that it was taking place. Before me is their motion
to dismiss some but not all of the claims and theories
pleaded against them. For the reasons set forth below, the
motion is GRANTED.
detailed Fanaro's allegations in my October 15, 2019
Order granting in part and denying in part the Contra Costa
County Defendants' motion to dismiss; I incorporate that
discussion by reference here. See Granting in Part
and Denying in Part the County Defendants' Motion to
Dismiss (“County MTD Order”) [Dkt. No. 36].
Fanaro filed a Second Amended Complaint in response to that
Order on October 30, 2019. See Second Amended
Complaint (“SAC”) [Dkt. No. 39]. De Leon filed a
motion to dismiss on December 11, 2019, and Rosas joined his
motion the following day. See Motion to Dismiss
(“MTD”) [Dkt. No. 52]; Joinder in Defendant De
Leon's Motion [Dkt. No. 53].
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. Fed.R.Civ.P. 12(b)(6). 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.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (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.” 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.” 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. 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.” 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.” Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).
and Rosas move to dismiss claims one, two, and four insofar
as they seek to proceed under a theory of Monell
liability. MTD 4-6. Fanaro does not oppose the motion to
dismiss claims two and four. See Opposition
(“Oppo.”) [Dkt. No. 55] 12. As for claim one,
Fanaro seems to misunderstand the nature of the
defendants' motion. They do not contend that Section 1983
liability is foreclosed, but rather that Monell is
the wrong vehicle when it comes to individual defendants.
See Reply [Dkt. No. 58] 2-3. There is no dispute
that De Leon and Rosas are not public entities; claim one
cannot proceed against them insofar as it rests on a theory
of Monell liability. The motion is GRANTED. Claims
two and four are DISMISSED WITH PREJUDICE and claim one is
DISMISSED insofar as it rests on Monell.
note that Fanaro again wrongly criticizes the defendants for
citing district court cases that have not been published in
the official reporter. Oppo. 9-10. I addressed this error in
my October 15, 2019 Order on the County Defendants'
Motion to Dismiss. County MTD Order 7 n.4. The rule Fanaro
cites applies to cases that are listed “not for
citation.” See Civ. L.R. 3-4(e). As long as
they do not bear this warning, district court cases published
through Westlaw and Lexis are certainly citable. Fanaro
should not repeat this argument in future filings.
STATE DUE PROCESS CLAUSE
I section 7 of the California Constitution provides, “A
person may not be deprived of life, liberty, or property
without due process of law or denied equal protection of the
laws.” Cal. Const. art. I, § 7. De Leon and Rosas
move to dismiss Fanaro's claim for money damages for the
due process violation alleged in claim six. As set forth
below, the positions Fanaro articulates in response are
flawed in several respects.
California Supreme Court has adopted a test to determine
whether to recognize a tort action for damages under a given
constitutional provision where the language and history of
the provision itself does not clearly indicate the presence
or absence of such a right.See Katzberg v. Regents of
Univ. of California, 29 Cal.4th 300, 324-25 (2002). The
factors are: (i) “whether an adequate remedy exists,
” (ii) “the extent to which a constitutional tort
action would change established tort law, ” (iii)
“the nature and significance of the constitutional
provision, ” and (iv) “the existence of any
special factors counseling hesitation in recognizing a
damages action.”Id. at 317. In Katzberg,
the court determined that money damages are not available for
a violation of the due process liberty interest
under article I, section 7(a).Id. at 329. In his
Opposition, Fanaro concedes that “the first three