Burrell v. City of Vallejo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ADRIAN BURRELL, an individual; No. 2:19-cv-01898 WBS KJN and MICHAEL WALTON, an 13 individual, 14 Plaintiffs, ORDER 15 v. 16 CITY OF VALLEJO, a municipal corporation; ANDREW BIDOU, in 17 his official capacity as Chief of Police, DAVID MCLAUGHLIN, 18 individually and in his official capacity as Police Officer for 19 the CITY OF VALLEJO; and DOES 1- 50, individually and in their 20 official capacities as Police Officers for the CITY OF 21 VALLEJO, jointly and severally, 22 Defendants. 23 24 ----oo0oo---- 25 Defendants City of Vallejo (“the City”), Chief of 26 Police for the City Andrew Bidou, and Officer David McLaughlin of 27 the Vallejo Police Department (collectively “defendants”) move to 28 dismiss or strike Paragraphs 29(a)-(j), (m), (o), (q)-(u) in 1 plaintiffs’ First Amended Complaint (“FAC”). (Mot. at 1 (Docket 2 No. 14).) 3 I. Background 4 Plaintiffs Adrian Burrell and Michael Walton are 5 cousins. (First Am. Compl. (“FAC”) ¶ 13 (Docket No. 5).) On 6 January 22, 2019, Walton drove his motorcycle to visit Burrell at 7 his home. (Id. ¶¶ 13-14.) After Walton pulled into Burrell’s 8 driveway, Burrell saw a police car parked on the wrong side of 9 the street behind Walton. (Id. ¶¶ 14-15.) Burrell walked onto 10 his front porch to investigate, only to find Officer McLaughlin 11 standing outside of his patrol car with his gun pointed at 12 Walton. (Id. ¶ 15.) Burrell called out to Officer McLaughlin, 13 and Officer McLaughlin ordered Burrell to go back inside. (Id. ¶ 14 16.) Burrell declined, and instead began filming the encounter 15 from his porch. (Id. ¶ 17.) 16 Officer McLaughlin approached Walton with his gun 17 raised and again commanded Burrell to “get back,” although he had 18 not left his porch. (Id. ¶ 18.) Then, Officer McLaughlin 19 holstered his gun and rushed toward Burrell, accusing him of 20 interfering with Walton’s stop. (Id. ¶¶ 19-20.) He grabbed 21 Burrell around his arms, threw him into the outside wall of his 22 home, and swung him into a wooden pillar on his porch. (Id. ¶¶ 23 20, 23.) Officer McLaughlin handcuffed both Burrell and Walton 24 and placed them in the back of his patrol car. (Id. ¶¶ 21-22.) 25 He then cited Walton for speeding. (Id. ¶ 21.) Officer 26 McLaughlin released the cousins, and Burrell was treated for 27 injuries to his arm, shoulder, and head at the emergency room. 28 (Id. ¶¶ 21-23.) 1 Plaintiffs allege, inter alia, a claim under Monell v. 2 Dep’t of Soc. Servs., 436 U.S. 658 (1978), against defendants for 3 failure to train and for ratification of unconstitutional conduct 4 pursuant to 42 U.S.C. § 1983. (Id. ¶¶ 41-46.) Plaintiffs offer 5 twenty-one incidents of alleged misconduct in Paragraph 29 to 6 support this claim. (Id. ¶ 29.) Defendants now move to dismiss 7 some of these examples under Federal Rule of Civil Procedure 8 12(b)(6), or in the alternative, strike the provisions under 9 Federal Rule of Civil Procedure 12(f). (Docket No. 14.) 10 II. Discussion 11 A motion to dismiss under Federal Rule of Civil 12 Procedure Rule 12(b)(6) is supposed to test the legal sufficiency 13 of the claims alleged in the complaint. Ileto v. Glock Inc., 349 14 F.3d 1191, 1199-20 (9th Cir. 2003). Here, defendants argue not 15 that plaintiff’s Monell claim should be dismissed but that only 16 paragraph 29(a)-(j), (m), (o), (q)-(u) should be dismissed 17 because “[p]laintiffs have failed to allege how these incident[s] 18 involving very different factual circumstances show a pattern and 19 practice of conduct that would support a Monell claim” while 20 conceding other portions of the same paragraph (subsections (k)- 21 (l), (n), and (p)) “could theoretically be related [to] the 22 alleged incident here.” (Mot. at 4, 7.) Specifically, 23 defendants seek to dismiss examples involving “shooting(s), 24 deployment of weapon(s) like a taser, officers interacting with 25 the mentally-ill, [and] the involvement of multiple officers” 26 while leaving those “involving First Amendment-related 27 arrests/use-of-force, officer allegedly going hands-on, alleged 28 unlawful seizure, alleged failure to address handcuffing, and/or 1 an alleged incident involving McLaughlin.” (Id. at 4.) 2 This request -- to dismiss specific subsections of a 3 paragraph in a complaint, while not seeking to dismiss the entire 4 claim -- does little to challenge the legal sufficiency of the 5 claim as required under Rule 12(b)(6). See Ileto, 349 F.3d at 6 1199-20. Instead, defendants in effect ask the court to rewrite 7 the complaint so as to include only examples of misconduct that 8 “bear sufficient resemblance to the fact pattern at issue.” 9 (Mot. at 7.) The court refuses to stretch the purposes of Rule 10 12(b)(6) to encompass cosmetic alterations to the operative 11 complaint. Accordingly, the court will deny defendants’ motion 12 to dismiss.1 13 As an alternative to dismissing Paragraph 29(a)-(j), 14 (m), (o), (q)-(u), defendants argue the provisions should be 15 stricken under Federal Rule of Civil Procedure 12(f). (Mot. at 16 6-7.) Rule 12(f) provides that the court may “strike from a 17 pleading an insufficient defense or any redundant, immaterial, 18 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The 19 function of a 12(f) motion to strike is to avoid the expenditure 20 of time and money that must arise from litigating spurious issues 21 by dispensing with those issues prior to trial.” Whittlestone, 22 Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) 23 1 Defendants also moved to dismiss claims against Bidou 24 and McLaughlin in their official capacities. (Mot. at 10.) In their opposition, plaintiffs agree that they improperly listed 25 defendants Bidou and McLaughlin in their official capacities and request leave to amend their complaint to list defendants Bidou 26 and McLaughlin in their individual capacities alone. (Opp. to 27 Mot. (“Opp.”) at 15 (Docket No. 17).) In light of the parties’ agreement, the court will permit plaintiffs to amend their 28 complaint. 1 (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 2 1993), rev’d on other grounds by Fogerty v. Fantastic, Inc., 510 3 U.S. 517 (1994)). Whether to grant a motion to strike is within 4 the court’s discretion. Nurse v. United States, 226 F.3d 996, 5 1000 (9th Cir. 2000). 6 Motions to strike are generally disfavored because they 7 are often used to delay resolving the case on the merits. See 8 Barnes v. AT&T Pens. Ben. Plan-Nonbargained Program, 718 F. Supp. 9 2d 1167, 1170 (N.D. Cal. 2010) (citation omitted). “Motions to 10 strike should not be granted unless the matter to be stricken 11 clearly could have no possible bearing on the subject of the 12 litigation or unless prejudice would result to the moving party 13 from denial of the motion.” Delgado v. Marketsource, Inc., No. 14 17-CV-07370-LHK, 2019 WL 1904216, at *3 (N.D. Cal. Apr. 29, 2019) 15 (internal quotations and citations omitted). Although defendants 16 argue that the examples they seek to strike in Paragraph 29(a)- 17 (j), (m), (o), (q)-(u) are irrelevant because they involve “very 18 different conduct” than the facts in this case, the motion does 19 not suggest that defendants would be prejudiced if the motion 20 were denied. (Mot. at 4.) Accordingly, the court will deny 21 defendants’ motion to strike. 22 IT IS THEREFORE ORDERED that defendants’ motion to 23 dismiss or strike portions of Paragraph 29 of the First Amended 24 Complaint (Docket No. 14) be, and the same thereby is, DENIED. 25 Within 10 days from the date this Order is filed plaintiff shall 26 file an amended complaint striking all allegations against 27 defendants Bidou and McLaughlin in their official capacity. 28 /// 1 Dated: March 30, 2020 □ * 2 th tenn Von Loh 3 UNITED STATES DISTRICT JUDGE 4 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28