Lesher v. City of Anderson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 THERESE L. LESHER, No. 2:21-cv-00386-WBS-DMC 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: MOTION TO DISMISS 15 CITY OF ANDERSON, a municipal corporation; CITY OF ANDERSON 16 POLICE SERGEANT SEAN MILLER, individually; CITY OF ANDERSON 17 POLICE OFFICERS JEFFREY MILEY, individually, and KAMERON LEE, 18 individually, and DOES 1-50, jointly and severally, 19 Defendants. 20 21 ----oo0oo---- 22 Plaintiff Therese Lesher (“plaintiff”) brought this 23 action against the City of Anderson (“Anderson”), Anderson Police 24 Sergeant Sean Miller, Anderson Police Officers Jeffrey Miley, 25 Kameron Lee, and DOES 1-50 seeking damages against defendants for 26 violation of the First and Fourth Amendment under 42 U.S.C. § 27 1983, municipal and supervisory liability under 42 U.S.C. § 1983, 28 1 violation of the Tom Bane Civil Rights Act, Cal. Civil Code § 2 52.1, malicious prosecution, violation of Article 1, § 13 of the 3 California Constitution, assault and battery, false arrest and 4 imprisonment, and negligence. 5 Defendants now move to dismiss plaintiff’s first cause 6 of action for violation of the First Amendment under 42 U.S.C. § 7 1983, second cause of action for municipal liability under 42 8 U.S.C. § 1983, and fifth cause of action for violation of Article 9 1, § 13 of the California Constitution. (See “Mot. to Dismiss” 10 (Docket No. 11).) 11 I. Factual and Procedural Background 12 On or about August 13, 2019, at approximately 12:30 13 A.M., plaintiff was sitting on the porch of her apartment 14 building talking with her cousin, Denhene Leach, and two other 15 persons, accompanied by Ms. Leach’s dog. (See Compl. at ¶ 17.) 16 (Docket No. 1.) Several Anderson Police Department vehicles 17 pulled into the parking lot in front of the building without 18 lights or sirens. (See id. at ¶ 18.) Unbeknownst to plaintiff 19 and her group, another tenant of the apartment complex had called 20 in a noise complaint to the Anderson Police Department. (See 21 id.) Ms. Leach’s dog left the porch and walked in the direction 22 of the officers, who had exited their patrol vehicles. (See id. 23 at ¶ 19.) Suddenly, one of the officers yelled that he had 24 allegedly been bitten by Ms. Leach’s dog. (See id.) The dog was 25 then retrieved and taken into Ms. Leach’s apartment. (See id.) 26 Plaintiff’s dog, which was locked in her vehicle, began 27 barking. (See id. at ¶ 20.) Plaintiff went to her car to calm 28 down her dog and ensure that it stayed in her vehicle. (See id.) 1 As she approached her vehicle, defendant Anderson Police Officer 2 Jeffrey Miley yelled for her to control her dog. (See id.) He 3 told her that he would pepper spray the dog or shoot it if 4 plaintiff did not control her dog’s barking. (See id.) In 5 response, plaintiff reached into the partially open rear window 6 of the vehicle and grabbed hold of her dog’s harness. (See id.) 7 Plaintiff disapproved of the way the officers were 8 performing their duties in their interactions with her and Ms. 9 Leach. (See id. at ¶ 21.) Accordingly, she criticized the 10 defendants, including Officer Miley and Sergeant Miller, and 11 expressed her disapproval as to the way they were conducting 12 themselves. (See id.) Without any warning whatsoever, plaintiff 13 was then thrown against the side of her vehicle, subjected to 14 various uses of force, and handcuffed by Sergeant Miller and 15 Officers Miley and Lee. (See id. at ¶ 22.) 16 Plaintiff was searched, arrested, and her personal 17 property was removed from her person. (See id.) She was 18 transported to the Shasta County Jail and booked by defendants 19 for alleged violations of California Penal Code § 69 (using 20 threats or violence to prevent executive officers from performing 21 their duties or resisting executive officers in the performance 22 of their duties), California Penal Code § 647(f) (being so 23 intoxicated in a public place that one is unable to care for 24 their own safety or the safety of others), and California Penal 25 Code § 148(a)(1) (resisting, delaying, or obstructing a law 26 enforcement officer). (See id.) Plaintiff contends that she was 27 cooperative, spoke calmly, and obeyed the officers’ commands at 28 all material times. (See id.) Plaintiff sustained an injury to 1 her left forearm, a clavicle fracture, and a left finger 2 fracture. (See id. at ¶ 26.) 3 Plaintiff’s arrest was made the subject of a criminal 4 prosecution in Shasta County, California for three misdemeanor 5 counts of a violation of California Penal Code § 148(a)(1). (See 6 id. at ¶ 24.) Plaintiff alleges that Sergeant Miller and 7 Officers Lee and Miley deliberately and knowingly misrepresented 8 the facts of the incident and/or the behavior of the plaintiff in 9 their reporting of the incident. (See id.) These alleged 10 misrepresentations were provided to the Shasta County District 11 Attorney’s Office with the knowledge and purpose of causing 12 plaintiff to defend herself against criminal charges in order to 13 cover up their own criminal acts. (See id. at ¶ 24.) On 14 September 24, 2020, plaintiff was ultimately acquitted on all 15 three charged counts after a jury trial. (See id. at ¶ 25.) 16 II. Discussion 17 Federal Rule of Civil Procedure 12(b)(6) allows for 18 dismissal when the plaintiff’s complaint fails to state a claim 19 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 20 The inquiry before the court is whether, accepting the 21 allegations in the complaint as true and drawing all reasonable 22 inferences in the plaintiff’s favor, the complaint has stated “a 23 claim to relief that is plausible on its face.” Bell Atl. Corp. 24 v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard 25 is not akin to a ‘probability requirement,’ but it asks for more 26 than a sheer possibility that a defendant has acted unlawfully.” 27 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare 28 recitals of the elements of a cause of action, supported by mere 1 conclusory statements, do not suffice.” Id. Although legal 2 conclusions “can provide the framework of a complaint, they must 3 be supported by factual allegations.” Id. at 679. 4 A. First Amendment Retaliation Claim 5 To bring a First Amendment retaliation claim under § 6 1983, a plaintiff must allege that (1) she engaged in a 7 constitutionally protected activity; (2) the defendants’ actions 8 would chill a person of ordinary firmness from continuing to 9 engage in the protected activity; and (3) the protected activity 10 was a substantial motivating factor in the defendant’s conduct - 11 i.e., that there was a nexus between the defendant’s actions and 12 an intent to chill speech. See Ariz. Students’ Ass’n v. Ariz. 13 Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (internal 14 citations omitted). To prevail on such a claim, a plaintiff need 15 only show that the defendant intended to interfere with the 16 plaintiff’s First Amendment rights and that she suffered some 17 injury as a result; the plaintiff is not required to demonstrate 18 that her speech was actually suppressed or inhibited. See id. 19 The court concludes that plaintiff has adequately pled 20 a claim of First Amendment retaliation. Plaintiff has clearly 21 alleged that she “disapproved of the way” that the officers were 22 performing their duties, “criticized the defendants”, and 23 “expressed her disapproval of the way that they were conducting 24 themselves.”1 (See Compl. at ¶ 21.) Defendants have cited no 25 1 Defendants argue in their reply that plaintiff’s complaint merely alleges that she voiced her disapproval of 26 defendants’ conduct during her arrest rather than before her 27 arrest. (See Reply in Supp. of Mot. to Dismiss at 3.) (Docket No. 14.) However, the complaint actually states that plaintiff 28 expressed her disapproval of the police officers and was 1 authority for their contention that plaintiff must specify 2 exactly what she said in criticism of defendants in her 3 complaint, and the court does not find that such specifics are 4 necessary at this stage of the pleadings. Accordingly, the court 5 concludes that plaintiff has sufficiently pled that she was 6 engaged in a constitutionally protected activity. 7 Defendants also contend that plaintiff has not alleged 8 that her criticism was “a substantial motivating factor” in 9 defendants’ conduct. (See Mot. to Dismiss at 8.) However, “a 10 plaintiff may establish motive using direct or circumstantial 11 evidence” and may “rely on evidence of temporal proximity between 12 the protected activity and alleged retaliatory conduct to 13 demonstrate that the defendant’s purported reasons for its 14 conduct are pretextual or false.” See Ariz. Students’ Ass’n, 824 15 F.3d at 871 (internal citations omitted). “At the pleading 16 stage, a plaintiff adequately asserts First Amendment retaliation 17 if the complaint alleges plausible circumstances connecting the 18 defendant’s retaliatory intent to the suppressive conduct.” See 19 id. Here, plaintiff’s complaint alleges that she criticized the 20 defendant police officers for their conduct and then, without any 21 warning whatsoever, was thrown against her vehicle and 22 handcuffed. (See Compl. at ¶¶ 21–22.) The close temporal 23 proximity between plaintiff’s exercise of free speech and the 24 alleged retaliatory conduct are sufficient at this stage in the 25 pleadings to allege that plaintiff’s exercise of free speech was 26 a substantial motivating factor in defendants’ conduct. 27 subsequently arrested in retaliation for her speech. (See Compl. 28 at ¶¶ 21–22.) 1 Defendants additionally argue that plaintiff’s first 2 cause of action violates the rule against “shotgun” pleading in 3 that multiple claims -- here, plaintiff’s First Amendment 4 retaliation claim and Fourth Amendment excessive force claim 5 under 42 U.S.C. § 1983 -- are lumped together in one cause of 6 action. (See Mot. to Dismiss at 3.) “Shotgun pleadings are 7 pleadings that overwhelm defendants with an unclear mass of 8 allegations and make it difficult or impossible to make informed 9 responses to the plaintiff’s allegations.” See McLaughlin v. 10 Castro, Case No. 1:17-cv-001597 DAD MJS, 2018 WL 1726630, at *4 11 (E.D. Cal. Apr. 10, 2018). Although the court does not think it 12 is impossible for defendants to make informed responses to 13 plaintiff’s allegations, the court agrees that the inclusion of 14 two claims in one cause of action requires repleading of these 15 claims in separate causes of action. Because the court will 16 grant plaintiff leave to amend her complaint, plaintiff is 17 instructed to separate these claims into two separate causes of 18 action in the next iteration of her complaint. 19 B. Claims Against the City of Anderson2 20 Because § 1983 does not provide for vicarious 21 2 Although defendants believed that plaintiff also 22 alleged a Monell claim against Sergeant Miller, plaintiff clarifies in her opposition that she only wishes to sue Sergeant 23 Miller for supervisorial liability under 42 U.S.C. § 1983. (See Opp’n to Mot. to Dismiss at 9.) As with her first claim, 24 plaintiff has lumped both her claims for municipal liability and supervisory liability together into one cause of action. This 25 inclusion of two claims in one cause of action once again makes it difficult to understand what factual allegations support which 26 claim. The court will grant leave to amend and instructs 27 plaintiff to plead her supervisory liability claim against Sergeant Miller in a separate cause of action in the next 28 iteration of her complaint. 1 liability, local governments “may not be sued under § 1983 for an 2 injury inflicted solely by its employees or agents.” Monell v. 3 Department of Social Services of the City of New York, 436 U.S. 4 658, 694 (1978). “Instead, it is when execution of a 5 government’s policy or custom, whether made by its lawmakers or 6 by those whose edicts or acts may be fairly said to represent 7 official policy, inflicts the injury that the government as an 8 entity is responsible under § 1983.” Id. A Monell claim lies 9 where “the municipal action was taken with the requisite degree 10 of culpability and must demonstrate a direct causal link between 11 the municipal action and the deprivation of federal rights.” Bd. 12 of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 406 (1997). 13 To survive a motion to dismiss, a plaintiff must do 14 more than simply assert that a Monell defendant “maintained or 15 permitted an official policy, custom, or practice of knowingly 16 permitting the occurrence of the type of wrongs” alleged in the 17 complaint. See AE ex. rel. Hernandez v. Cnty. of Tulare, 666 18 F.3d 631, 637 (9th Cir. 2012). Facts regarding the specific 19 nature of the alleged policy, custom, or practice are required; 20 merely stating the subject to which the policy relates (i.e., 21 excessive force) is insufficient. See id. 22 1. Unconstitutional Custom or Policy 23 For an unwritten policy or custom to form the basis of 24 a Monell claim, it must be so “persistent and widespread” that it 25 constitutes a “permanent and well settled” practice. See Monell, 26 436 U.S. at 691. In pleading such a claim, the complaint must 27 “put forth additional facts regarding the specific nature of 28 [the] alleged policy, custom, or practice.” See AE ex. rel. 1 Hernandez, 666 F.3d at 637. 2 Plaintiff alleges that Anderson maintains ten unlawful 3 customs or practices. (See Compl. at ¶ 41.) However, plaintiff 4 has alleged no facts in their complaint regarding an 5 unconstitutional policy, custom or practice, allegations of prior 6 incidents, or facts which demonstrate that the alleged practices 7 were of “sufficient duration, frequency, and consistency such 8 that the alleged custom or practice has become a traditional 9 method of carrying out policy.” See Harper v. Cnty. Of Merced, 10 1:18-cv-005620 LJO SKO, 2018 WL 5880786, at *6 (E.D. Cal. Nov. 8, 11 2018). Instead, plaintiff merely relies on boilerplate 12 conclusions of customs, practices, and policies which state, 13 without any supporting factual allegations, that Anderson fails 14 to supervise and/or discipline officers for their misconduct, 15 uses or tolerates excessive or unjustified force, and fails to 16 institute adequate training policies in response to 9-1-1 calls, 17 among other policies. (See Compl. at ¶ 41.) 18 Plaintiff argues that she was subjected to excessive 19 force and then falsely charged by the arresting officers, which 20 conforms to the policies and practices alleged in her complaint 21 such as excessive force and “hurt a person, charge a person.” 22 (See Opp’n to Mot. to Dismiss at 10.) However, district courts 23 have routinely found that a Monell claim is insufficiently pled 24 where plaintiff merely alleges that the defendant has a policy or 25 custom of performing various wrongs alleged elsewhere in her 26 complaint. See Bagley v. City of Sunnyvale, Case No. 16-cv- 27 02250-LHK, 2017 WL 344998, at *16 (N.D. Cal. Jan. 24, 2017) 28 (holding that plaintiff did not adequately plead a Monell claim 1 where plaintiff essentially alleged that the city had an 2 “official policy, custom, or practice of knowingly permitting the 3 occurrence of the type of wrongs” alleged elsewhere in the 4 complaint.); see also Mendy v. City of Fremont, No. C-13-4180 5 MMC, 2014 WL 574599, at *3 (N.D. Cal. Feb. 12, 2014) (holding 6 that an allegation that a county maintained or permitted an 7 official policy, custom or practice of knowingly permitting the 8 occurrence of the type of wrongs that plaintiff alleged elsewhere 9 in the complaint were insufficient to state a municipal liability 10 claim.) Plaintiff’s allegations are therefore insufficient to 11 state a plausible, not merely possible, claim for relief. See AE 12 ex rel. Hernandez, 666 F.3d at 637. 13 2. Ratification 14 The Ninth Circuit has “found municipal liability on the 15 basis of ratification when the officials involved adopted and 16 expressly approved of the acts of others who caused the 17 constitutional violation.” Trevino v. Gates, 99 F.3d 911, 920 18 (9th Cir. 1996). Ratification “generally requires more than 19 acquiescence.” Sheehan v. City and Cnty. of San Francisco, 743 20 F.3d 1211, 1231 (9th Cir. 2014) (overruled on other grounds by 21 City and Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 1767– 22 1778 (2015)). Plaintiff’s complaint talks about ratification 23 generally, stating that Anderson ratified the ten allegedly 24 unconstituional customs, policies, or practices. (See Compl. at 25 ¶¶ 41, 43, 47.) However, the complaint does not include any 26 factual allegations regarding any approval or ratification by 27 Anderson of the allegedly unconstitutional actions or the basis 28 for such approval. Such conclusory pleading, absent any 1 supporting factual allegations, does not sufficiently state a 2 Monell claim. See Hicks v. Cnty. of Stanislaus, Case No. 1:17- 3 cv-01187 LJO SAB, 2018 WL 347790, at *6 (dismissing a 4 ratification claim where the complaint contained no factual 5 allegations to support the claim that the County “approved, 6 ratified, condoned, encourage, sought to cover up, and/or tacitly 7 authorized” the conduct of the police unit.) The plaintiff here 8 has therefore failed to state a cognizable claim of ratification 9 under Monell. 10 3. Failure to Train 11 In order to state a claim for failure to train under 12 Monell, a plaintiff must show that: (1) the existing training 13 program is inadequate in relation to the tasks the particular 14 officers must perform; (2) the officials have been deliberately 15 indifferent to the rights of the persons with whom the police 16 come into contact; and (3) the inadequacy of the training 17 “actually caused the deprivation of the alleged constitutional 18 right.” Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th 19 Cir. 1989). 20 Here, plaintiff has not provided any factual 21 allegations as to (1) how Anderson’s officer training is 22 inadequate, (2) how the officials have been deliberately 23 indifferent to the rights of Anderson citizens, or (3) how the 24 inadequacy of the training actually caused the alleged 25 deprivation of plaintiff’s constitutional rights. See Merritt, 26 875 F.2d at 770. Accordingly, plaintiff has failed to state a 27 28 1 cognizable claim of failure to train under Monell.3 Because the 2 complaint fails to state a Monell claim under any theory, the 3 court will dismiss the complaint’s second cause of action against 4 Anderson. 5 C. Article I, Section 13 of the California Constitution 6 The California Supreme Court has not decided whether 7 there is a private cause of action for damages under Article I, 8 Section 13, which protects against unreasonable searches and 9 seizures. See Julian v. Mission Cmty. Hosp., 11 Cal. App. 5th 10 360, 393 (2d. Dist. 2017). The majority of federal district 11 court decisions of which this court is aware appear to have 12 concluded that there is no private cause of action for damages 13 under this provision of the California Constitution. See Autotek 14 v. Cnty. of Sacramento, No. 2:16-cv-01093-KJM-CKD, 2017 WL 15 3149923, at *9 (E.D. Cal. July 25, 2017) (“California 16 Constitution Article I, Section 13, upon which this claim rests, 17 does not confer a private right of action for damages.”); Manning 18 v. City of Rohnert Park, No. C 06-0345 SBA, 2007 WL 1140434, at 19 *1 (N.D. Cal. Apr. 17, 2007) (“Neither the plain language of 20 Article I, Section 13, nor the available legislative history 21 indicate an intent on behalf of the California Legislature to 22 permit the recovery of monetary damages for its violation.”). 23 However, as emphasized in Estate of Sanchez v. Cnty. of 24 3 Moreover, if a Monell claim is predicated on an 25 assertion of inadequate training with respect to the use of excessive force, “[m]ere proof of a single incident of errant 26 behavior is a clearly insufficient basis for imposing liability.” 27 See Merritt, 875 F. 2d at 770. Plaintiff concedes that she has not alleged a pattern involving specific other cases or 28 instances. (See Opp’n to Mot. to Dismiss at 12.) 1 Stanislaus, No. 1:18-cv-00977-DAD-BAM, 2019 WL 1745868, at *9 2 (E.D. Cal. Apr. 18, 2019), in order to determine whether the 3 California Constitution provides for a private right of action, 4 the court and the litigants must engage in the analysis set forth 5 by the California Supreme Court in Katzberg v. Regents of the 6 University of California, 29 Cal. 4th 300, 317 (2002). 7 The Katzberg analysis employs a two step approach. 8 First, the court must “inquire whether there is evidence from 9 which we may find or infer, within the constitutional provision 10 at issue, an affirmative intent either to authorize or to 11 withhold a damages action to remedy a violation.” See id. In 12 undertaking this inquiry, the court “shall consider the language 13 and history of the constitutional provision at issue, including 14 whether it contains guidelines, mechanisms, or procedures 15 implying a monetary remedy, as well as any pertinent common law 16 history.” See id. If the court finds any such intent, it shall 17 give it effect. See id. Second, “if no affirmative intent 18 either to authorize or to withhold a damages remedy is found, the 19 court shall undertake the ‘constitutional tort’ analysis adopted 20 in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388– 21 398 (1971), and its progeny.” See id. “Among the relevant 22 factors in this analysis are whether an adequate remedy exists, 23 the extent to which a constitutional tort action would change 24 established tort law, and the nature and significance of the 25 constitutional provision.” See id. If the court finds that the 26 factors militate against recognizing the constitutional tort, the 27 inquiry ends. See id. If the factors favor recognizing a 28 constitutional tort, the court shall also consider the existence 1 of any special factors counseling hesitation in recognizing a 2 damages action, including “deference to legislative judgment, 3 avoidance of adverse policy consequences, considerations of 4 government fiscal policy, practical issues of proof, and the 5 competence of courts to assess particular types of damages.” Id. 6 As in Estate of Sanchez, the defendants here have made 7 no effort to engage in the Katzberg analysis in their motion to 8 dismiss. Instead, they merely point to two district court 9 opinions which held, without engaging in any Katzberg analysis, 10 that Article I, Section 13 of the California Constitution does 11 not confer a private right of action for damages. See Victoria 12 v. City of San Diego, 326 F. Supp. 3d 1003, 1020–21 (S.D. Cal. 13 2018); Elliott v. Solis, No. 1:17-cv-01214-LJO-SAB, 2017 WL 14 4811747, at *7 (E.D. Cal. Oct. 24, 2017). In their reply, 15 defendants again refuse to meaningfully engage in the Katzberg 16 analysis. (See Docket No. 14 at 8.) 17 Defendants bear the burden of persuasion on their 18 motion to dismiss and have failed to carry it here. See Welchen 19 v. Cnty. of Sacramento, No. 2:16-cv-TLN-KJN, 2016 WL 5930563, at 20 *10 (E.D. Cal. Oct. 11, 2016) (“[S]ince it is defendants’ burden 21 at the motion to dismiss juncture, the court cannot find that 22 defendants’ motion is meritorious.”) Given the lack of a 23 Katzberg analysis by defendants and the early stage of these 24 proceedings, the court is not inclined to foreclose this cause of 25 action at this time. The court will accordingly deny defendants’ 26 motion to dismiss plaintiff’s fifth cause of action under Article 27 I, Section 13 of the California Constitution. 28 IT IS THEREFORE ORDERED that the defendants’ motion to 1 dismiss plaintiff’s second cause of action under Monell, (Docket 2 No. 11), be, and the same hereby is, GRANTED. Defendants’ motion 3 to dismiss plaintiff’s first cause of action for violation of the 4 First Amendment under 42 U.S.C. § 1983 and fifth cause of action 5 for violation of Article 1, § 13 of the California Constitution 6 is DENIED. 7 Plaintiff has twenty days from the date this Order is 8 Signed to file an amended complaint if she can do so consistent 9 | with this Order. 10 IT IS SO ORDERED . 11 | Dated: June 30, 2021 ahi hem A fh be WILLIAM B. SHUBB 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15