Upton v. County of El Dorado ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JENNIFER ANN UPTON, No. 2:19-cv-01972-JAM-DB 9 Plaintiff, 10 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 11 COUNTY OF EL DORADO, et al., 12 Defendants. 13 Jennifer Ann Upton (“Plaintiff”) filed this lawsuit against 14 the County of El Dorado, the El Dorado County Sheriff’s Office, 15 Sheriff John D’Agostini, Deputy Sheriff Jack Kerruish, Deputy 16 Sheriff Evan Richardson, and Does 1-40 (collectively, 17 “Defendants”), alleging several civil rights violations under 42 18 U.S.C. §§ 1983 and 1985. See Compl. ECF No. 1. Defendants move 19 to dismiss: Plaintiff’s first claim under § 1983 claim insofar as 20 it alleges violations under the Eighth and Fourteenth Amendments; 21 Plaintiff’s claim under § 1983 for municipal liability (Monell 22 claim); and Plaintiff’s fourth claim under § 1985 for conspiracy 23 to violate civil rights. Notice of Mot. at 2, ECF No. 6. 24 Plaintiff opposes the motion. Opp’n, ECF No. 9. For the reasons 25 set forth below, the Court GRANTS Defendants’ Motion to Dismiss.1 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for March 10, 2020. 1 I. FACTUAL SUMMARY2 2 On October 1, 2017, Plaintiff awoke to Deputy Sheriffs Jack 3 Kerruish (“Kerruish”) and Evan Richardson (“Richardson”) at her 4 front door. Compl. ¶ 17. Kerruish and Richardson forced their 5 way into Plaintiff’s home when she opened her front door. Id. 6 Plaintiff took a step back into the house and Kerruish grabbed 7 her left arm and twisted it behind her back. Id. Plaintiff 8 asked Kerruish to stop and indicated that he was hurting her. 9 Id. Kerruish kept Plaintiff’s arm twisted behind her back and 10 told her to “quit resisting.” Id. Kerruish forced Plaintiff 11 over to her kitchen table where he handcuffed her and told her to 12 take a seat in one of the chairs. Id. 13 At this point, Plaintiff’s husband entered the living room 14 and Kerruish and Richardson beat him until he was bleeding. Id. 15 ¶ 18. Thereafter, an unnamed sheriff’s deputy forced Plaintiff 16 outside and sat her down on the stairs leading up to her house. 17 Id. ¶ 19. Still handcuffed, Plaintiff told the deputy she was in 18 pain and asked him to loosen the handcuffs. Id. The deputy 19 refused. Id. Plaintiff informed the deputy that she had Lupus 20 and having her hands behind her back was, as a result, especially 21 painful. Id. Eventually, another sheriff’s deputy loosed 22 Plaintiff’s handcuffs and re-handcuffed her hands in front of 23 her. Compl. ¶ 20. Plaintiff was then told that she was under 24 arrest for domestic violence. Id. 25 Plaintiff suffered injuries to her neck, head, arms, and 26 breasts as a result of the force used during her arrest and 27 2 The Court has accepted the allegations in the Complaint as true 28 only for purposes of this motion to dismiss. 1 receives ongoing medical treatment. Id. ¶¶ 26, 27. Plaintiff 2 was subsequently charged with, and acquitted of, resisting, 3 obstructing, or delaying a peace officer in the performance of 4 his duties in violation of California Penal Code § 148(a). Id. 5 ¶ 4. During these criminal proceedings, Plaintiff raised 6 excessive use of force by Defendants as an affirmative defense. 7 Id. 8 9 II. OPINION 10 A. Legal Standard 11 Federal Rule of Civil Procedure 8(a)(2) requires “a short 12 and plain statement of the claim showing that the pleader is 13 entitled to relief.” A suit must be dismissed if the plaintiff 14 fails to “state a claim upon which relief can be granted.” Fed. 15 R. Civ. Proc. 12(b)(6). To defeat a Rule 12(b)(6) motion to 16 dismiss, a plaintiff must “plead enough facts to state a claim 17 to relief that is plausible on its face.” Bell Atlantic Corp. 18 v. Twombly, 550 U.S. 544, 570 (2007). This plausibility 19 standard requires “factual content that allows the court to draw 20 a reasonable inference that the defendant is liable for the 21 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 22 (2009). 23 “At this stage, [while] the Court ‘must accept as true all 24 of the allegations contained in a complaint,’” it need not 25 “accept as true a legal conclusion couched as a factual 26 allegation.” Id. In dismissals for failure to state a claim, 27 leave to amend the pleading should be granted, unless a 28 “pleading could not possibly be cured by the allegation of other 1 facts.” Cooks, Perkiss, & Leiche, Inc. v. N. Cal. Collection 2 Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 3 B. Analysis 4 1. The Sheriff’s Office and Sheriff D’Agostini 5 As an initial matter, the Court finds that the El Dorado 6 County Sheriff’s Office and Sheriff D’Agostini must be dismissed 7 as defendants. See Mot. to Dismiss (“Mot.”) at 2, n.2–3, ECF 8 No. 6. Although municipalities, such as cities and counties, 9 are amenable to suit under Monell v. Dept. of Social Services, 10 436 U.S. 658 (1978), departments of municipal entities are not 11 “persons” subject to suit under § 1983; therefore, the Sheriff’s 12 Office—a local law enforcement department—is not a proper party. 13 Hervey v. Estes, 65 F.3d 784, 791–92 (9th Cir. 1995). As such, 14 Plaintiff cannot pursue her remaining § 1983 claims against the 15 Sheriff’s Office. See Boone v. Deutsche Bank Nat’l Tr. Co., No. 16 2:16-cv-1293, WL 117966 at *3 (E.D. Cal. 2017) (“Because the 17 Solano County Sheriff’s Department is not a ‘person’ within the 18 meaning of [§] 1983, plaintiffs cannot maintain their claims 19 against it under that statute as a matter of law.”). 20 Similarly, it is well-established that official-capacity 21 suits “generally represent only another way of pleading an 22 action against an entity of which an officer is an agent.” 23 Hafer v. Melo, 502 U.S. 21, 25 (9th Cir. 1991). Thus, a 24 defendant that has been sued in an official capacity in addition 25 to the entity, may be dismissed “as a redundant defendant.” 26 Center For Bio-Ethical Reform, Inc. v. L.A. County Sheriff 27 Dept., 533 F.3d 780, 786 (9th Cir. 2008). Plaintiff named 28 Sheriff D’Agostini as a defendant in his official capacity in 1 addition to the County of El Dorado. See Compl. ¶ 8. Sheriff 2 D’Agostini is, thus, a redundant defendant and must be 3 dismissed. 4 Accordingly, the Court DISMISSES both the El Dorado County 5 Sheriff’s Office and Sheriff D’Agostini as defendants. To the 6 extent that Plaintiff alleges a § 1985 claim against the 7 Sheriff’s Office and Sheriff D’Agostini, their dismissal is 8 inconsequential as the § 1985 claim is dismissed for the reasons 9 discussed below. 10 2. Excessive Force—Individual Officers 11 “Section 1983 creates a private right of action against 12 individuals who, acting under color of state law, violate 13 federal constitutional or statutory rights.” Deveraux v. Abbey, 14 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not 15 itself a source of substantive rights, but merely provides a 16 method for vindicating federal rights elsewhere conferred.” 17 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal 18 quotation marks and citations omitted). To establish § 1983 19 liability, a plaintiff must show: (1) deprivation of a right 20 secured by the Constitution and laws of the United States, and 21 (2) that the deprivation was committed by a person acting under 22 color of state law. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 23 1138 (9th Cir. 2010). 24 Plaintiff’s first claim under § 1983 is for unlawful use of 25 force, excessive force, and cruel and unusual punishment under 26 the Fourth, Fourteenth, and Eighth Amendments. See Compl. 27 ¶¶ 15–41. Defendants concede that, pursuant to Graham, 490 U.S. 28 386, this claim is facially valid under the Fourth Amendment. 1 Mot. at 5. “Where . . . the excessive force claim arises in the 2 context of an arrest or investigatory stop of a free citizen, it 3 is most properly characterized as one invoking the protections 4 of the Fourth Amendment . . . .” Id. at 394. Accordingly, 5 Plaintiff’s § 1983 Fourth Amendment excessive force claim will 6 go forward. By contrast, Plaintiff’s § 1983 Eighth Amendment 7 claim must fail. As Defendants correctly point out, the “Cruel 8 and Unusual Punishments Clause ‘was designed to protect those 9 convicted of crimes’” and, thus, applies to post-sentence 10 incarcerated persons, not Plaintiff’s pre-arrest excessive force 11 claims. Whitley v. Albers, 475 U.S. 312, 318 (1986); Mot. at 5. 12 The Fourteenth Amendment is, similarly, not the appropriate 13 constitutional provision under which to pursue pre-arrest 14 excessive force claims. “[A]ll claims that law enforcement 15 officers have used excessive force . . . in the course of an 16 arrest, investigatory stop, or other ‘seizure’ of a free citizen 17 should be analyzed under the Fourth Amendment and its 18 ‘reasonableness’ standard, rather than under a ‘substantive due 19 process’ approach.” Graham, 490 U.S. at 395 (emphasis in 20 original). “Because the Fourth Amendment provides an explicit 21 textual source of constitutional protection against . . . 22 physically intrusive governmental conduct, that Amendment, not 23 the more generalized notion of ‘substantive due process,’ must 24 be the guide for analyzing [excessive force] claims.” Id. 25 (emphasis added). 26 Plaintiff “cannot ‘double up’ constitutional claims in this 27 way: Where a claim can be analyzed under ‘an explicit textual 28 source’ of rights in the Constitution, a court may not also 1 assess the claim under another, ‘more generalized,’ source. 2 Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1029 (9th 3 Cir. 2002) (citing Graham, 490 U.S. at 394–95 (where excessive 4 force claims were properly analyzed under only the Fourth 5 Amendment, not also under substantive due process)). Thus, the 6 Fourth Amendment alone governs the constitutionality of the 7 amount of force used during Plaintiff’s arrest. The Eighth and 8 Fourteenth Amendments are inapposite here. 9 Accordingly, Plaintiff’s § 1983 excessive force claim is 10 limited to the Fourth Amendment and the Court DISMISSES the 11 first cause of action to the extent it relies on the Eighth and 12 Fourteenth Amendments. 13 3. Monell 14 Municipalities can be sued directly under 42 U.S.C. § 1983 15 for an unconstitutional custom, policy, or practice. Monell, 16 436 U.S. at 690. To establish municipal liability, a plaintiff 17 must show (1) he possessed a constitutional right and was 18 deprived of that right, (2) the municipality had a policy, 19 (3) the policy amounts to deliberate indifference to the 20 plaintiff’s constitutional right, and (4) the policy was the 21 moving force behind the constitutional violation. Sweiha v. 22 Cnty. of Alameda, No. 19-CV-03098-LB, WL 48482227 (N.D. Cal. 23 2019) (citing Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 24 F.3d 432, 438 (9th Cir. 1997)). A plaintiff can establish the 25 existence of a policy or custom with: (1) proof that a municipal 26 employee committed the alleged constitutional violation pursuant 27 to a formal government policy, or a “longstanding practice or 28 custom,” which constitutes the standard operating procedure of 1 the local government entity; (2) proof that the individual who 2 committed the constitutional tort was an official with final 3 policy-making authority and that the challenged conduct was thus 4 an act of official government policy; or (3) proof that an 5 official with “final policymaking authority” ratified a 6 subordinate’s unconstitutional decision or action and the basis 7 for it. Gillete v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 8 1992). Plaintiffs assert a Monell claim under the first theory 9 and possibly also the third theory. See Compl. ¶¶ 16, 32, 44, 10 50, 64, 68, 79, 82. 11 Plaintiff has scattered allegations in support of a Monell 12 claim throughout the complaint. Id. However, those 13 allegations, taken together, are insufficient to support either 14 the existence of an unconstitutional custom or policy or the 15 ratification of a subordinate’s unconstitutional action. An 16 unwritten policy or custom can form the basis of a Monell claim, 17 but it must be so “persistent and widespread” that it 18 constitutes a “permanent and well settled” practice. Monell, 19 436 U.S. at 691. And “[l]iability for improper custom may not 20 be predicated on isolated or sporadic incidents; it must be 21 founded upon practices of sufficient duration, frequency, and 22 consistency that the conduct has become a traditional method of 23 carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th 24 Cir. 1996). The complaint must “put forth additional facts 25 regarding the specific nature of [the] alleged policy, custom, 26 or practice. AE ex rel. Hernandez v. Cnty of Tulare, 666 F.3d 27 631, 637 (9th Cir. 2012). 28 Plaintiff alleges the County of El Dorado has a pattern, 1 practice, custom, or policy of “utilizing excessive force . . . 2 against individuals such as Plaintiff when they are called in on 3 Domestic Violence/Welfare calls.” Compl. ¶¶ 16, 32, 50, 68. 4 Plaintiff alleges the same pattern or practice specific to 5 Kerruish. Id. ¶¶ 16, 44, 64. However, these boilerplate 6 allegations do not contain any factual assertions that explain 7 what a custom of practice of “using excessive force” means in a 8 practical and factual sense. And Plaintiff’s recitation of the 9 basic elements of a Monell claim, supported only by facts 10 specific to her arrest, fails to show the practice was “of 11 sufficient duration, frequency, and consistency such that the 12 alleged custom or practice has become a traditional method of 13 carrying out policy.” Harper v. Cnty of Merced, Case No. 1:18- 14 cv-00562, WL 5880786 at *6 (E.D. Cal. 2018). 15 Insofar as Plaintiff also asserts a Monell claim under a 16 theory of ratification, an isolated constitutional violation can 17 give rise to municipal liability if ratified by a person with 18 “final policymaking authority.” Christie v. Iopa, 176 F.3d 19 1231, 1238 (9th Cir. 1999). But Plaintiff does not present any 20 factual allegations suggesting a county official approved or 21 ratified this alleged unconstitutional practice. To show 22 ratification, a plaintiff must prove “that the authorized 23 policymakers approve a subordinate’s decision and the basis for 24 it.” Id. at 1239 (quoting City of St. Louis v. Praprotnik, 485 25 U.S. 112, 127 (1988)). Therefore, ratification requires 26 knowledge of the alleged constitutional deprivation. Id. 27 Plaintiff merely alleges that the County of El Dorado “ratified 28 [the] conduct [of the unnamed deputies]” and that it “knew or 1 should have known that their conduct ratified the use of 2 excessive force.” See Compl. ¶ 13. This lone, conclusory 3 allegation is insufficient to state a cognizable claim. See 4 Hicks v. Cnty of Stanislaus, Case No. 1:17-cv-01187, WL 347790 5 at *6 (E.D. Cal. 2018) (dismissing a ratification claim where 6 the complaint contained “no factual allegations to support the 7 claim that the County ‘approved, ratified, condoned, encouraged, 8 south to cover up, and/or tacitly authorized’ the conduct 9 . . . .”). 10 Accordingly, the Court dismisses Plaintiff’s § 1983 11 municipal liability claim under Monell. 12 4. Conspiracy to Violate Civil Rights 13 Conspiracies to interfere with civil rights are made 14 actionable under 42 U.S.C. § 1985. Section 1985 contains three 15 subsections, but Plaintiff did not plead a specific subsection 16 in her complaint. In her opposition to the motion to dismiss, 17 Plaintiff only addressed the second clause of subsection (2). 18 See Opp’n at 8. As such, the Court has considered the second 19 clause of subsection (2) to be operative here. Subsection (2) 20 deals with obstructing justice and intimidating parties, 21 witnesses, or jurors. See 42 U.S.C. § 1985(2). The second 22 clause of subsection (2) “concerns access to state or 23 territorial courts, giving rise to a cause of action where[:] 24 two or more persons conspire for the purpose of impeding, 25 hindering, obstructing, or defeating, in any manner, the due 26 course of justice in any State or Territory, with intent to deny 27 to any citizen the equal protection of the laws . . . .” 28 Portman v. Cnty of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1 1993) (emphasis in original). 2 The “equal protection language of the second clause of [§] 3 1985(2) requires an allegation of class-based animus for the 4 statement of a claim under that clause.” Id. at 909 (internal 5 quotation marks and citations omitted). Plaintiff’s complaint 6 lacks facts supporting a claim that she was either denied access 7 to state courts or faced class-based animus. See Compl. ¶¶ 80– 8 81. Plaintiff merely alleges that “[e]ach of the aforementioned 9 [constitutional violations] were executed as a result of a 10 conspiracy by each and every one of the [Defendants] . . . ,” 11 and that the conspiracy “included the excessive use of force, 12 taking steps to cover up the illegal use of force by drafting 13 false police reports . . . and by failing to complete reports 14 containing exculpatory information.” Compl ¶¶ 80–81. These 15 conclusory allegations offer no underlying facts to support 16 Plaintiff’s cause of action under section 1985(2). Accordingly, 17 the Court DISMISSES Plaintiff’s section 1985 claim of a 18 conspiracy to violate her civil rights. 19 C. Leave to Amend 20 Under Fed. R. Civ. Proc. 15(a), leave to amend “shall be 21 freely given when justice so requires.” The Ninth Circuit has 22 “repeatedly stressed” that the Court must adhere to “the 23 underlying purpose of Rule 15 . . . to facilitate decision on 24 the merits, rather than on the pleadings or technicalities.” 25 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 26 Accordingly, leave to amend should be granted, “unless [the 27 Court] determines that a pleading could not possibly be cured by 28 the allegation of other facts.” Id. (citing Doe v. U.S., 58 1 F.3d 494, 497 (9th Cir. 1995)). 2 Plaintiff has requested leave to amend. Opp’n at 14. But 3 the Court finds that amendment would be futile. Plaintiff, in 4 her opposition, had the opportunity to set forth an offer of 5 proof as to any additional facts that could be pled in support 6 of her claims, but failed to include anything that demonstrates 7 that the dismissed claims can be cured by amendment. The Court 8 also finds amendment is not needed to allow Plaintiff to add a 9 specific prayer for relief at the conclusion of the complaint. 10 See Mot. at 2, n.1. As Plaintiff points out, a claim of damages 11 is stated at the conclusion of each cause of action. See Opp’n 12 at 14; Compl. ¶¶ 34–41, 52–59, 70–77, 83–89. The Court finds 13 this to be adequate. 14 Accordingly, the Court DENIES Plaintiff’s request for leave 15 to amend the complaint. The remaining claims in this action are 16 as follows: 17 1. Excessive Force under the Fourth Amendment pursuant to 18 42 U.S.C. § 1983; 19 2. Unreasonable Seizure and False Arrest under the Fourth 20 Amendment pursuant to 42 U.S.C. § 1983; and 21 3. Deliberate Fabrication of Evidence under the 22 Fourteenth Amendment pursuant to 42 U.S.C. § 1983. 23 24 III. ORDER 25 For the reasons set forth above, the Court GRANTS 26 Defendants’ Motion to Dismiss. The Court: 27 1. DISMISSES Defendants the County of El Dorado Sheriff’s 28 Office and Sheriff John D’Agostini with prejudice; 1 2, GRANTS Defendants’ Motion to Dismiss the claim of 2 unlawful use of force, excessive force, and cruel and unusual 3 punishment under the Bighth and Fourteenth Amendments pursuant to 4 42 U.S.C. § 1983 with prejudice; 5 3. GRANTS Defendants’ Motion to Dismiss the Monell claim 6 | pursuant to 42 U.S.C. § 1983 with prejudice; and 7 4, GRANTS Defendants’ Motion to Dismiss the claim of 8 conspiracy to violate civil rights pursuant to 42 U.S.C. § 1985 9 | with prejudice. 10 IT IS SO ORDERED. 11 Dated: March 31, 2020 12 kA 13 teiren staves odermacr 7008 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13