Hausauer v. Mesa, City of ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jeffery T. Hausauer, No. CV-20-00653-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 City of Mesa, et al., 13 Defendants. 14 15 Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s First 16 Amended Complaint (“FAC”). (Doc. 17.) The motion will be granted in part and denied 17 in part. 18 BACKGROUND 19 I. Factual Allegations In The FAC 20 The FAC alleges as follows. On April 2, 2019, Plaintiff, a 61-year-old U.S. military 21 veteran, was riding a tricycle when he was struck by a truck at a traffic intersection in Mesa, 22 Arizona by Russelland Fulwilder, who had been “the passenger of another truck vs. tricycle 23 incident that the Plaintiff was the victim of, on that same corner in April of 2016.” (Doc. 24 7 at 2-3.) 25 Six Mesa Police Department officers—Defendants Nicholas Nelson, David 26 Monarrez, Carlos Santana, Christophe Tautimez, Shannon O’Leary, and Linwood 27 Brannon, III (the “Officers”)—arrived at the scene. (Id. at 4.) Plaintiff was on the hood of 28 the truck that hit him when Officers Nelson and Santana arrived. (Id.) Plaintiff told them 1 “that he felt as if his left leg was broken, that he was bleeding from his left side, that he 2 was having problems breathing and his left thumb felt broken.” (Id.) Paramedics were at 3 the scene of the incident, but Officers Nelson and Santana “refused to allow” the 4 paramedics to treat Plaintiff. (Id.) Officers Monarrez, Tautimez, O’Leary, and Brannon 5 “chose not to intercede” and “blockaded the scene of the incident, preventing the . . . 6 paramedics from treating” Plaintiff. (Id. at 5.) 7 Officer Santana “threatened to shoot [Plaintiff] if he did not remove himself from 8 the hood of the truck and sit on the curb.” (Id.) “Plaintiff explained again that he could 9 not move and was in serious pain.” (Id.) Officer Santana “put his hand on his weapon” 10 and repeated the threat, so Plaintiff attempted to comply. (Id.) When Plaintiff “attempted 11 to put his weight on his left leg[,] he immediately fell to the ground with his left foot pinned 12 in back of his left ear under his own weight and was unable to get up.” (Id.) 13 Officer Santana “had one of the onlookers on the sidewalk go into the street and 14 straighten the left leg of the Plaintiff.” (Id.) Officer Nelson moved Plaintiff in front of the 15 truck that hit him and “then put a woman in the driver seat of the truck,” on Officer 16 Santana’s orders. (Id. at 5-6.) Officer Santana told Plaintiff “to confess that he was lying 17 about his injury” and threatened to “have [Plaintiff] run over” with the truck that had hit 18 him if he refused to confess. (Id. at 6.) Officers Santana and Nelson then ordered the 19 woman in the driver’s seat of the truck to “drive over [Plaintiff] several times.” Officer 20 Nelson then “exchanged places” with the woman “and ran over [Plaintiff] several more 21 times.” (Id.) 22 The paramedics then were “allowed to provide emergency treatment,” and Plaintiff 23 was transported to an emergency room where he underwent treatment for various severe 24 injuries sustained during the incident. (Id. at 7.) 25 II. Procedural History 26 On April 1, 2020, Plaintiff filed the Complaint (Doc. 1) and an application to 27 proceed in forma pauperis (“IFP”) (Doc. 2). The Court granted the IFP application and, 28 pursuant to 28 U.S.C. § 1915(e)(2), dismissed one claim (Fourteenth Amendment coercion) 1 with prejudice and dismissed the remaining claims with leave to amend. (Doc. 6.) The 2 Court noted that the allegations were “conclusory” and “vague” and failed to differentiate 3 between the defendants. (Id.) 4 On June 9, 2020, Plaintiff filed the FAC, which included the same four counts as 5 the original Complaint: (1) deliberate indifference to medical needs, in violation of the 6 Fourteenth Amendment (2) a Fourteenth Amendment claim of coercion; (3) a common law 7 tort claim for “assault and battery as a result of coercion”; and (4) a violation of the right 8 to equal protection under the Fourteenth Amendment. (Doc. 7.) The FAC also includes a 9 separate count “against the City of Mesa and Police Department.” (Id. at 12-14.) 10 On June 17, 2020, the Court screened the FAC pursuant to 28 U.S.C. § 1915(e)(2) 11 and dismissed with prejudice the (impermissibly reasserted) Fourteenth Amendment 12 coercion claim and the Fourteenth Amendment equal protection claim. (Doc. 8 at 3.) The 13 Court determined that “the remaining claims, liberally construed, are not subject to 14 dismissal at the screening stage, without prejudice to the Defendants’ ability to file a 15 motion to dismiss under Rule 12(b)(6).” (Id.) 16 On August 4, 2020, Defendants filed the now-pending motion to dismiss the FAC 17 for failure to state a claim. (Doc. 17.) Plaintiff filed a response (Doc. 19) and Defendants 18 filed a reply (Doc. 20). 19 DISCUSSION 20 Defendants advance two arguments in favor of dismissal: (1) Plaintiff’s complaint 21 “does not contain sufficient plausible allegations to support a claim for relief,” and (2) “the 22 Mesa Police Department is a nonjural entity that lacks the capacity to be sued.” (Doc. 17 23 at 5-8.) 24 I. The Mesa Police Department Is A Non-Jural Entity 25 “[T]here is a consensus that city police departments are non-jural entities that may 26 not be sued in their own names.” Payne v. Arpaio, 2009 WL 3756679, *4 (D. Ariz. 2009) 27 (collecting cases). “[T]he Mesa Police Department is not a separate entity, but is solely a 28 department of the City of Mesa.” Williams v. City of Mesa Police Dep’t, 2009 WL 1 2568640, *3 (D. Ariz. 2009). “Because the City of Mesa Police Department does not have 2 a separate legal existence, it is not a proper defendant.” Id. 3 Although Plaintiff “disagrees” (Doc. 19 at 4), Plaintiff has provided no legal 4 authority to the contrary. Thus, any claim against the Mesa Police Department is dismissed 5 with prejudice.1 6 II. The Factual Allegations State A Claim 7 A. Legal Standard 8 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 9 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 10 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial 11 plausibility when the plaintiff pleads factual content that allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” Id.2 “[A]ll 13 well-pleaded allegations of material fact in the complaint are accepted as true and are 14 construed in the light most favorable to the non-moving party.” In re Fitness Holdings 15 Int’l, Inc., 714 F.3d 1141, 1144-45 (9th Cir. 2013). 16 Legal conclusions couched as factual allegations are not entitled to the presumption 17 of truth. Iqbal, 556 U.S. at 679-80 (“Threadbare recitals of the elements of a cause of 18 action, supported by mere conclusory statements, do not suffice.”). “While legal 19 conclusions can provide the framework of a complaint, they must be supported by factual 20 allegations.” Id. at 679. 21 “When there are well-pleaded factual allegations, a court should assume their 22 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 23 24 1 When a claim against a defendant is dismissed “with prejudice,” it is “an adjudication on the merits,” and thus Plaintiff cannot (1) amend the complaint to re-add 25 the claim in the current action or (2) file a new action in the District of Arizona bringing the same claim. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001). 26 “That is undoubtedly a necessary condition, but it is not a sufficient one, for [barring the same claim] in other courts.” Id. at 506. 27 28 2 The court also may dismiss due to “a lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). 1 Id. Taking as true all of the well-pleaded factual allegations, there must be “more than a 2 sheer possibility” that a defendant is liable for the claim to be “plausible.” Id. at 678. 3 “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive 4 issue of law . . . operating on the assumption that the factual allegations in the complaint 5 are true.” Neitzke v. Williams, 490 U.S. 319, 326 (1989). “What Rule 12(b)(6) does not 6 countenance are dismissals based on a judge’s disbelief of a complaint’s factual 7 allegations.” Id. at 327. See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) 8 (citing this passage from Neitzke with approval); Iqbal, 556 U.S. at 681 (“It is the 9 conclusory nature of respondent’s allegations, rather than their extravagantly fanciful 10 nature, that disentitles them to the presumption of truth.”). 11 B. Analysis 12 There can be little doubt that Plaintiff has included enough detail in his narrative to 13 satisfy the requirement that legal conclusions must be supported by well-pleaded factual 14 allegations. Indeed, Defendants recount the narrative, as told by Plaintiff in the FAC, in 15 vivid detail in their motion to dismiss. (Doc. 17 at 2-4.) Rule 8 of the Federal Rules of 16 Civil Procedure “does not require ‘detailed factual allegations,’” Iqbal, 556 U.S. at 677, 17 but Plaintiff has provided them. The FAC cannot be accused of being “an unadorned, the- 18 defendant-unlawfully-harmed-me accusation” that offers only “labels and conclusions,” “a 19 formulaic recitation of the elements of a cause of action,” or “naked assertions devoid of 20 further factual enhancement.” Id. at 678 (internal quotation marks omitted). 21 The gravamen of Defendant’s argument is that Plaintiff’s allegations are not 22 believable. However, this is not the proper inquiry for a motion to dismiss. Neitzke, 490 23 U.S. at 327. 24 Defendants characterize Plaintiff’s allegations as “outrageous” and then argue that 25 such allegations are “not entitled to the assumption of truth,” citing Iqbal. (Doc. 17 at 5- 26 6.) But in Iqbal, the Supreme Court emphasized that it was not discrediting any factual 27 allegations because they were unbelievable: 28 [T]he allegations are conclusory and not entitled to be assumed true. To be clear, we do not reject these bald allegations on the ground that they are 1 unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs’ express allegation of a 2 “contract, combination or conspiracy to prevent competitive entry” because it thought that claim too chimerical to be maintained. It is the conclusory 3 nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth. 4 Iqbal, 556 U.S. at 681 (emphasis added) (citations omitted). 5 Defendants appear to conflate two determinations—(1) whether facts alleged in the 6 complaint are believable and (2) whether the facts, all taken as true, plausibly suggest 7 liability. The “plausibility” inquiry does not ask whether the facts themselves are plausible, 8 but rather whether the conclusion drawn from those facts (that a defendant is liable for the 9 asserted claims) is plausible. Twombly, 550 U.S. at 555 (“Factual allegations must be 10 enough to raise a right to relief above the speculative level, on the assumption that all the 11 allegations in the complaint are true (even if doubtful in fact).”) (citations omitted). “[A] 12 well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of 13 those facts is improbable, and ‘that a recovery is very remote and unlikely.’” Id. at 556. 14 The plausibility determination is easily resolved here. If Plaintiff’s factual 15 allegations are assumed to be true, Defendants are plausibly liable for the claims remaining 16 in this action, deliberate indifference and assault and battery. 17 1. Deliberate Indifference 18 “Although the 14th Amendment does not generally require police officers to provide 19 medical assistance to private citizens, when a state officer’s conduct places a person in 20 peril in deliberate indifference to their safety, that conduct creates a constitutional claim.” 21 Penilla v. City of Huntington Park, 115 F.3d 707, 709 (9th Cir. 1997) (citation omitted). 22 “[A] state actor . . . has a constitutional duty under the due process clause to protect an 23 individual where the state places that individual in danger through affirmative conduct,” 24 regardless of whether that individual is in custody. Id. at 711. Preventing others from 25 providing needed medical care is an affirmative action that increases the risk of harm. Id. 26 at 710; see also Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013) 27 (“Impeding access to medical care amounts to leaving a victim in a more dangerous 28 situation.”). 1 The FAC alleges that the Officers arrived at the scene of the accident to find 2 Plaintiff, who was located on the hood of the vehicle that hit him, reporting that he was 3 badly injured and needed medical treatment, but they refused to allow the paramedics to 4 treat him. (Doc. 7 at 2-5.) The FAC states a Fourteenth Amendment due process claim for 5 deliberate indifference to medical needs. 6 2. Assault And Battery 7 Arizona law applies to the tort claim. Tekle v. United States, 511 F.3d 839, 855 (9th 8 Cir. 2007) (applying state law to an assault and battery claim). “To establish a battery 9 claim, a plaintiff must prove that the defendant intentionally caused a harmful or offensive 10 contact with the plaintiff to occur.” Johnson v. Pankratz, 2 P.3d 1266, 1268 (Ariz. Ct. App. 11 2000). 12 The FAC alleges that Officers Santana and Nelson caused Plaintiff to be repeatedly 13 run over with a truck. The FAC states a claim for assault and battery as to Officers Santana 14 and Nelson. Construed liberally, the FAC states a claim for assault and battery under an 15 aiding and abetting theory as to the remaining Officers. Ramirez v. Chavez, 226 P.2d 143, 16 146 (Ariz. 1951) (“If [a defendant] did aid and abet in the commission of such battery or 17 acted in concert with [the acting defendant] he is equally liable with [the acting defendant] 18 for the damages sustained by [the plaintiff]. Aid and abet means simply to encourage, 19 counsel, advise or assist in the commission of an act. The words comprehend all assistance 20 rendered by acts or words of encouragement or support or presence actual or constructive, 21 to render assistance should it become necessary. It means to assent to an act; to lend to it 22 countenance and approval, either by an active participation in it or by in some manner 23 advising or encouraging it.”) (emphasis added); see also Rodgers v. Bryan, 309 P.2d 773, 24 776 (Ariz. 1957). 25 Thus, Defendants’ Rule 12(b)(6) motion for failure to state a claim will be denied 26 as to the Officers. 27 III. The FAC Is Not Frivolous 28 Although Defendants’ motion is styled as a motion to dismiss pursuant to Rule 1 12(b)(6), the gist of the motion is that the action is frivolous, which is a ground for dismissal 2 pursuant to 28 U.S.C. § 1915(e)(2). The Court already screened the FAC pursuant to 3 § 1915(e)(2) and determined that the portions of the FAC that survived that screening were 4 not frivolous. (Doc. 8.) The Court can revisit its earlier determination, as § 1915(e)(2) 5 specifies that it applies “at any time.” However, it is not clear that it would be proper for 6 defendants to an action to move for reconsideration of a district court’s § 1915 screening 7 order, and in fact, Defendants have not done so here. Nevertheless, assuming arguendo 8 that such a motion could ever be proper, and construing the motion to dismiss as seeking 9 such reconsideration, the Court reaffirms its previous determination that the action is not 10 frivolous. 11 A complaint is “frivolous” where “it lacks an arguable basis either in law or in fact.” 12 Neitzke, 490 U.S. at 325. “To this end, [§ 1915(e)(2)(B)(i)] accords judges not only the 13 authority to dismiss a claim based on an indisputably meritless legal theory, but also the 14 unusual power to pierce the veil of the complaint’s factual allegations and dismiss those 15 claims whose factual contentions are clearly baseless.” Id. at 327. “Examples of the latter 16 class are claims describing fantastic or delusional scenarios, claims with which federal 17 district judges are all too familiar.” Id. at 328. Nevertheless, “this initial assessment of 18 the in forma pauperis plaintiff’s factual allegations must be weighted in favor of the 19 plaintiff.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). “In other words, 20 the [§ 1915(e)(2)(B)(i)] frivolousness determination, frequently made sua sponte before 21 the defendant has even been asked to file an answer, cannot serve as a factfinding process 22 for the resolution of disputed facts.” Id. 23 “[A] finding of factual frivolousness is appropriate when the facts alleged rise to the 24 level of the irrational or the wholly incredible, whether or not there are judicially noticeable 25 facts available to contradict them.” Id. at 33. “An in forma pauperis complaint may not 26 be dismissed, however, simply because the court finds the plaintiff’s allegations unlikely.” 27 Id. “Some improbable allegations might properly be disposed of on summary judgment, 28 but to dismiss them as frivolous without any factual development is to disregard the age- 1 old insight that many allegations might be ‘strange, but true; for truth is always strange, 2 Stranger than fiction.’” Id. 3 The Supreme Court declined the invitation to “define the ‘clearly baseless’ 4 guidepost with more precision” because district courts “are in the best position to determine 5 which cases fall into this category.” Id. 6 Here, Plaintiff notes in his response that his FAC “does not accuse any Defendant 7 of being a cement-eating alien from the planet Sorong” (Doc. 19 at 4), a colorful way of 8 asserting that his allegations are not fanciful. Defendants respond by asserting that “the 9 plaintiff’s ‘cement-eating alien’ test does not accurately capture Iqbal’s holding.” (Doc. 10 20 at 2 n.1.) Of course, as noted above, Iqbal’s holding has nothing to do with fanciful 11 allegations; it is confined to conclusory allegations and conclusions that cannot plausibly 12 be drawn from facts accepted as true. 556 U.S. at 681. The “clearly baseless” standard 13 that applies to fanciful allegations during § 1915 IFP screenings, on the other hand, has not 14 been reduced to “a monolithic standard,” Denton, 504 U.S. at 33—and yet the Court can’t 15 help but note that cement-eating aliens are squarely in line with the kind of allegations that 16 district courts deem “clearly baseless.” 17 For example, in Ahmann v. Penny, 2006 WL 3498572, *2 (D. Nev. 2006), the 18 district court deemed “wholly incredible” the plaintiff’s allegations that “conspirators have 19 used an ‘electronic communication devise [sic] set at distorted volumes with the intent to 20 cause physical pain and torture’” and that he “was subjected to being killed, poisoned, 21 raped, being held in jail forever, hypnotized, having items stolen, stalked and many other 22 offenses.” The court noted that the plaintiff’s “claim of being killed” could not be 23 reconciled with his being “still here to file this action.” Id. 24 In Maxey v. KCRA Television, Inc., 2015 WL 6951277, *1 (E.D. Cal. 2015), the 25 district court began by noting that it does not exercise lightly the “unusual power” to deem 26 a plaintiff’s allegation clearly baseless and furthermore “takes very seriously” the 27 admonition of the Supreme Court that truth can be “stranger than fiction.” Nevertheless, 28 where the plaintiff alleged “that the government surgically inserted a microchip into his 1 brain as an infant in violation of his Eighth Amendment rights, and have since engaged in 2 a campaign to undercut plaintiff’s credibility by slandering his good name” as part of a 3 “vast government conspiracy originating with President Richard Nixon and extending to 4 President Barack Obama and Governor Jerry Brown,” the district court found the 5 allegations “so incredible that they need not be accepted as true.” Id. 6 In Riches v. Rice, 2007 WL 4533130, *1 (N.D. Cal. 2007), the plaintiff filed a 7 § 1983 lawsuit against Jerry Rice and Bill Walsh, the former player and coach of the San 8 Francisco 49ers football team, asserting that Jerry Rice was “torturing” the plaintiff when 9 he was on the television program “Dancing with the Stars” by “smiling at [the plaintiff], 10 knowing [the plaintiff was] suffering hardship and pain,” and that Bill Walsh was 11 collaborating with John Walsh (the host of “America’s Most Wanted”), “Walsh from 12 Watergate,” and Brandon Walsh, a fictional character from the 1990’s teen drama 13 television series “Beverly Hills, 90210,” to influence prison officials to feed the plaintiff 14 inadequately. The district court found these allegations to be “clearly baseless, irrational 15 or wholly incredible.” Id. 16 Overwhelmingly, the cases in which district courts have found allegations to be 17 “clearly baseless” have featured facts more bizarre than those alleged in this case. See also, 18 Riches v. Longoria, 2007 WL 3146704, *1 (N.D. Cal. 2007) (claim that actress Eva 19 Longoria is plaintiff’s “intellectual property” and that Maxim Magazine stole her from him 20 was clearly baseless); Rosberg v. San Francisco Sheriff’s Dep’t., 2010 WL 2219725, *1 21 (N.D. Cal. 2010) (plaintiff’s allegations that he was being attacked by “the voice of God” 22 or “similar technology” deemed “wholly incredible”); Payne v. Contra Costa Sheriff's 23 Dep’t, 2002 WL 1310748, *1 (N.D. Cal. 2002) (“Plaintiff’s allegations that he has been 24 subjected to various harassment and torture through the use of telepathy/mind control are 25 factually frivolous under Denton.”). 26 By contrast, in Denton, the plaintiff filed five lawsuits alleging that he was “drugged 27 and homosexually raped a total of 28 times by inmates and prison officials at different 28 institutions.” 504 U.S. at 28. The district court adopted a magistrate judge’s 1 recommendation that the complaints be dismissed as frivolous. The dismissal order 2 reasoned that “each complaint, taken separately, is not necessarily frivolous,” but that “a 3 different picture emerges from a reading of all five complaints together” because “[d]espite 4 the fact that different defendants are allegedly responsible for each assault, the 5 purported modus operandi is identical in every case.” Id. at 29. After two trips to the Ninth 6 Circuit and the Supreme Court, finally a magistrate judge determined that the complaints 7 were not frivolous, and the action was ultimately resolved at the summary judgment stage. 8 Hernandez v. Denton, 83-cv-0645 (E.D. Cal. Order filed Feb. 29, 1996).3 9 Here, certain elements of Plaintiff’s FAC appear improbable and highly 10 coincidental. Nevertheless, the Court concludes that the FAC is not “wholly incredible” 11 or “clearly baseless.” 12 Accordingly, 13 IT IS ORDERED that Defendants’ motion to dismiss (Doc. 17) is granted in part 14 and denied in part. 15 … 16 … 17 … 18 3 See generally Michael Zachary, Dismissal of Federal Actions and Appeals Under 19 28 U.S.C. Ss 1915(e)(2) and 1915a(b), 42 U.S.C. S 1997e(c) and the Inherent Authority of the Federal Courts: (a) Procedures for Screening and Dismissing Cases; (b) Special P, 43 20 N.Y.L. Sch. L. Rev. 975, 1032-33 (2000); see also id. at 1051-52 (“The Denton actions amply illustrate the difficulty in defining the border between improbable and incredible 21 when a claim, or series of claims, involves multiple improbable allegations. The judges who considered the Denton rape claims frivolous focused exclusively on the cumulative 22 effect of the allegations, the repetitiveness of which rendered them questionable, and Hernandez’s psychological diagnosis, while ignoring or unnecessarily downplaying the 23 following countervailing factors: (1) Rapes do occur in prison and in psychiatric hospitals; (2) Certain prisoners may be the victims of multiple rapes because of particular physical or 24 psychological traits that make them targets of sexual interest by other prisoners or guards; (3) Hernandez was, in fact, forcibly drugged by prison officials, albeit pursuant to the 25 instructions of medical personnel; and (4) Certain of the rape allegations were supported by the affidavits of two other prisoners. The fourth factor, by itself, should have made a 26 finding of factual frivolousness impossible. However, even in the absence of the two affidavits, the rape claims should not have been dismissed outright. While suspiciously 27 repetitive, there remained the possibility that one or more of the alleged rapes did in fact occur. Hernandez’s mental illness may have caused him to supplement or repeat 28 allegations concerning a rape that actually occurred rather than invent the entire series of rapes.”). 1 IT IS FURTHER ORDERED that the Mesa Police Department is dismissed from this action with prejudice. 3 Dated this 14th day of December, 2020. 4 5 f t _o—— Dominic W. Lanza 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12-