Libby v. City of Gridley ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MICHAEL A. LIBBY, No. 2:21-cv-00017-JAM-AC 11 Plaintiff, 12 v. ORDER DENYING PLAINTIFF’S MOTION TO STRIKE AND GRANTING 13 CITY OF GRIDLEY, et al., IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 14 Defendants. 15 16 Michael A. Libby (“Plaintiff”) brings this Section 1983 17 action against the City of Gridley, the Gridley Police 18 Department, Gridley Police Chief Rodney W. Harr, Gridley Police 19 Sergeant Farr, and Gridley Police Officer Pasley (“Defendants”). 20 First Amended Complaint (“FAC”) at 2, ECF No. 21. Pending before 21 the Court are two motions: Defendants’ motion to dismiss, Defs.’ 22 Mot., ECF No. 32, and Plaintiff’s motion to strike, Pl.’s Mot., 23 ECF No. 35.1 Plaintiff opposed Defendants’ Motion. Pl.’s Opp’n, 24 ECF No. 40. Defendants replied. Defs.’ Reply, ECF No. 42. 25 Defendants also opposed Plaintiff’s Motion. Defs.’ Opp’n, ECF 26 27 1 These motions were determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearings 28 were scheduled for September 14, 2021. 1 No. 39. Plaintiff replied. Pl.’s Reply, ECF No. 41. After 2 consideration of the parties’ briefing and relevant legal 3 authority, the Court grants in part and denies in part 4 Defendants’ motion to dismiss and denies Plaintiff’s motion to 5 strike. 6 7 I. BACKGROUND 8 The parties are intimately familiar with the factual 9 background of this case as previously set forth in the operative 10 complaint, the parties’ briefings, and the Court’s prior order. 11 See Order Granting Mot. to Dismiss (“Prior Order”) at 1-3, ECF 12 No. 20. These material facts are not restated here. 13 On May 17, 2021, the Court granted Defendants’ motion to 14 dismiss. See generally Prior Order. On June 3, 2021, Plaintiff 15 filed an amended complaint, adding Sergeant Farr as a named 16 Defendant. See FAC. Defendants again move to dismiss. See 17 Defs.’ Mot. On June 30, 2021, Defendants filed an answer. See 18 Answ., ECF No. 31. Plaintiffs move to strike affirmative 19 defenses asserted by Defendants in their answer. See Pl.’s Mot. 20 21 II. OPINION 22 A. Plaintiff’s Motion to Strike 23 A Rule 12(f) motion asks the court to strike any 24 “insufficient defense” from an answer. Fed. R. Civ. P. 12(f). 25 An affirmative defense may be insufficient as a matter of law or 26 as a matter of pleading. Butcher v. City of Marysville, No. 27 2:18-cv-02765-JAM-CKD, 398 F.Supp.3d 715, 728 (E.D. Cal. 28 2019)(internal citations omitted). Motions to strike affirmative 1 defenses are “regarded with disfavor because of the limited 2 importance . . . and because they are often used as a delaying 3 tactic.” Brooks v. Vitamin World USA Corp., No. 20-cv-01485-MCE- 4 KJN, 2021 WL 4777014, at *1 (E.D. Cal. Oct. 13, 2021) (internal 5 citations omitted). Accordingly, “courts often require a showing 6 of prejudice by the moving party before granting the requested 7 relief.” Id. “Where no such prejudice is demonstrated, motions 8 to strike may therefore be denied even though the offending 9 matter was literally within one or more of the categories set 10 forth in Rule 12(f).” Id. 11 Here, Plaintiff moves to strike Defendant’s affirmative 12 defenses. See generally Pl.’s Mot. Plaintiff first argues 13 affirmative defenses are subject to the plausibility 14 pleading standard. Id. at 2-3. This argument, however, has 15 been squarely rejected by this Court, see Xiong v. G4S 16 Secure Solutions (USA) Inc., No. 2:19-cv-00508-JAM-EFB, 2019 17 WL 3817645, at *1 (E.D. Cal. Aug. 14, 2019) (“Consistent 18 with its prior decisions, this Court declines to apply the 19 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and 20 Ashcroft v. Iqbal, 556 U.S. 662 (2009) pleading standards to 21 affirmative defenses.”), and by other Eastern District 22 courts, see e.g. Vitamin World USA Corp., 2021 WL 4777014, 23 at *2 (“District courts in this circuit were previously 24 split on whether the heightened pleading standard announced 25 [in Twombly and Iqbal] applied to affirmative 26 defenses . . . the Ninth Circuit, however, has resolved the 27 spilt in the district courts . . . accordingly, this Court 28 applies the ‘fair notice’ standard, and not the heightened 1 pleading standard announced in Twombly and Iqbal when 2 evaluating motions to strike affirmative defenses.”). 3 Plaintiff’s first argument thus fails. 4 Plaintiff next argues that he is not required to show 5 prejudice. Pl.’s Mot. at 8. This argument, too, has been 6 rejected by this Court, see Brooks v. Boiling Crab Franchise 7 Co. LLC, No. 2:20-cv-01390-JAM-CKD, ECF No. 12 (E.D. Cal. 8 Nov. 10, 2020) (denying plaintiff’s motion to strike 9 “because Plaintiff has failed to demonstrate any cognizable 10 prejudice”), by other Eastern District Courts, see e.g. 11 Vitamin World USA Corp., 2021 WL 4777014, at *1 (explaining 12 “courts often require a showing of prejudice by the moving 13 party before granting the requested relief”), and by other 14 district courts within the Ninth Circuit, see e.g. N.Y.C. 15 Emps.’ Ret. Sys. v. Berry, 667 F.Supp.2d 1121, 1128 (N.D. 16 Cal. 2009) (“Where the moving party cannot adequately 17 demonstrate . . . prejudice, courts frequently deny motions 18 to strike ‘even though the offending matter was literally 19 within one or more of the categories set forth in Rule 20 12(f).’”). Thus, contrary to Plaintiff’s contention, a 21 showing of prejudice is required. Plaintiff has not 22 demonstrated prejudice. See Pl.’s Mot.; see also Pl.’s 23 Reply. Accordingly, Plaintiff’s motion to strike is denied. 24 B. Defendants’ Motion to Dismiss 25 A Rule 12(b)(6) motion challenges the complaint as not 26 alleging sufficient facts to state a claim for relief. Fed. R. 27 Civ. P. 12(b)(6). “To survive a motion to dismiss [under 28 12(b)(6)], a complaint must contain sufficient factual matter, 1 accepted as true, to state a claim for relief that is plausible 2 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 3 (internal quotation marks and citation omitted). While 4 “detailed factual allegations” are unnecessary, the complaint 5 must allege more than “[t]hreadbare recitals of the elements of 6 a cause of action, supported by mere conclusory statements.” 7 Id. In considering a motion to dismiss for failure to state a 8 claim, the court generally accepts as true the allegations in 9 the complaint, construes the pleading in the light most 10 favorable to the party opposing the motion, and resolves all 11 doubts in the pleader’s favor. Lazy Y Ranch Ltd. v. Behrens, 12 546 F.3d 580, 588 (9th Cir. 2008). “In sum, for a complaint to 13 survive a motion to dismiss, the non-conclusory ‘factual 14 content,’ and reasonable inferences from that content, must be 15 plausibly suggestive of a claim entitling the plaintiff to 16 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 17 2009). 18 Here, Defendants move to dismiss the claims against the 19 City of Gridley and the Gridley Police Department, see Defs.’ 20 Mot. at 3-5, as well as the claims against Chief Harr and 21 Sergeant Farr, see id. at 6-15. 22 1. Claims Against the City and Police Department 23 Specifically, Defendants City of Gridley and Gridley Police 24 Department seek to dismiss the fourth claim for violation of the 25 Rehabilitation Act (“Rehab Act”) and the fifth claim for 26 violation of the Americans with Disabilities Act (“ADA”). Defs.’ 27 Mot. at 3-6; Defs.’ Reply at 2-3. The Court previously dismissed 28 these two claims for failure to allege disability with the 1 requisite factual specificity. Prior Order at 5. Defendants 2 argue that the FAC still does not contain sufficient facts to 3 maintain these claims. Defs.’ Mot. at 1, 3-6. 4 As explained in the Court’s prior order, courts analyze ADA 5 and Rehab Act claims together because they provide identical 6 remedies, procedures, and rights. Prior Order at 4 (citing to 7 Tennyson v. Cty. of Sacramento, No. 2:19-cv-00429-KJM, 2020 WL 8 4059568, at *4 (E.D. Cal. July 20, 2020)). To state a claim 9 under Section 504 of the Rehab Act, a plaintiff must allege: 10 “(1) he is an individual with a disability; (2) he is otherwise 11 qualified to receive the benefit; (3) he was denied the benefits 12 of the program solely by reason of his disability; and (4) the 13 program receives federal financial assistance.” Duvall v. Cty. 14 of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001) (internal 15 quotation marks and citations omitted). To state a claim under 16 Title II of the ADA, a plaintiff must allege that: “(1) he is a 17 qualified individual with a disability; (2) he was either 18 excluded from participation in or denied the benefits of a public 19 entity’s services, programs, or activities, or was otherwise 20 discriminated against by the public entity; and (3) such 21 exclusion, denial of benefits, or discrimination was by reason of 22 his disability.” Id. 23 The parties dispute whether Plaintiff’s allegations as to 24 the elements of disability and reasonable accommodation are 25 sufficient. Defs.’ Mot. at 5 (“In sum, Plaintiff’s FAC fails to 26 allege sufficient facts to demonstrate he was disabled, that 27 Defendants were aware of his disability, and that they failed to 28 accommodate him.”); Pl.’s Opp’n at 1-3. As to disability, the 1 Court agrees with Plaintiff that he has added sufficient facts to 2 survive the motion to dismiss. Pl.’s Opp’n at 1-2. Plaintiff 3 added the following allegations to the FAC: “Since 1995, 4 [Plaintiff] has struggled with a persistent and ongoing injury to 5 his left arm and shoulder, originating with a torn rotator cuff 6 he experienced when he was involved in a rollover vehicle 7 accident. In 2006, [Plaintiff] underwent a ‘clean up’ surgery on 8 his injured arm, in order to remove scar tissue around the site 9 of the injury. In 2015, [Plaintiff] received a ‘total shoulder 10 replacement’ surgery at the Cleveland Shoulder Institute. In 11 July 2020, [Plaintiff’s] employer placed him on ‘non-industrial 12 disability’ for six-months, due to his arm injury. [Plaintiff’s] 13 injured arm is a source of consistent soreness and nerve pain 14 which substantially limits his ability to perform manual tasks, 15 including lifting or putting pressure on the injured arm. 16 [Plaintiff’s] injured arm continuously causes him pain and 17 imposes limitations, including on the date giving rise to this 18 action, November 23, 2020.” FAC ¶¶ 12-16. These allegations 19 “identify more than the general nature of the disability” and are 20 therefore sufficient. Prior Order at 5; see also Bresaz v. Cnty. 21 of Santa Clara, 136 F. Supp. 3d 1125, 1136 (N.D. Cal. 2015) 22 (“courts have generally required the party to plead the 23 disability with some factual specificity.”) 24 As to awareness of the disability and reasonable 25 accommodation, the Court again agrees with Plaintiff that there 26 is sufficient factual detail in the FAC to support his claim that 27 Defendants were aware of his disability and failed to reasonably 28 accommodate him. Pl.’s Opp’n at 2-3. Plaintiff alleges that he 1 “informed [Officer Pasley] that he had a physical disability 2 caused by a previous shoulder surgery to his left arm which 3 required the site of the injury to be treated with care,” and 4 further that Officer Pasley “disregarded [Plaintiff’s] warning 5 concerning his physical disability” and instead “forcefully 6 grabbed hold of [Plaintiff’s] left arm” and “hyper-flexed [his] 7 left arm and shoulder, twisting his arms behind his back.” FAC 8 ¶¶ 32-34, 115, 121. Additionally, Plaintiff alleges that Officer 9 Pasley and Sergeant Farr “refused to accommodate [his] injured 10 arm, for example, by removing the handcuffs, by applying the 11 handcuffs in front rather than behind the body, or by loosening 12 the handcuffs.” Id. ¶ 46. Defendants contend these allegations 13 are insufficient, but do not provide any binding authority 14 supporting their position that more is required at this early 15 stage of the case. See generally Defs.’ Mot. Defendants’ 16 citation to two out-of-circuit cases, see Defs.’ Reply at 2 17 (citing to Bartee v. Michelin N. AM., Inc., 374 F.3d 906, 916 18 (10th Cir. 2004) and E.E.O.C. v. C.R. England, Inc., 644 F.3d 19 1028 (10th Cir. 2011)) do not persuade the Court that more 20 factual detail is required. 21 For these reasons, the Court denies Defendants’ motion as to 22 the fourth and fifth claims against the City of Gridley and the 23 Gridley Police Department. 24 2. Claims Against Chief Harr and Sergeant Farr 25 a. First, Sixth, and Ninth Claims: False Arrest 26 Sergeant Farr moves to dismiss Plaintiff’s first claim for 27 false arrest pursuant to 42 U.S.C. Section 1983; his sixth claim 28 for false arrest pursuant to Cal. Const., Art. I. Section 13; and 1 his ninth claim for false arrest/imprisonment. Defs.’ Mot. at 6- 2 8, 9-10; Defs.’ Reply at 3-4. Farr generally contends that he 3 cannot be held liable because Officer Pasley arrested Plaintiff 4 not Sergeant Farr, further that the arrest was constitutional 5 because probable cause existed, and even if the arrest were 6 unconstitutional, Sergeant Farr was merely present and his 7 failure to intervene does not rise to the level of reckless or 8 callous indifference. Id. Farr maintains that the allegations 9 indicate the following: “Plaintiff refused to obey orders and was 10 uncooperative. Due to Plaintiff’s refusal to cooperate, Officer 11 Pasley was left with no choice but to arrest or let Plaintiff 12 return to the residence where he was no longer welcome. 13 Certainly, it was not illegal for Sergeant Farr to fail to 14 intervene on the arrest under these circumstances.” Defs.’ Mot 15 at 10. 16 However, Farr ignores Plaintiff’s allegations indicating he 17 was a lawful guest at the residence where he was arrested, that 18 he was not committing any crime, and that despite this lawful 19 presence, the officers demanded he vacate the residence. FAC 20 ¶¶ 17-18, 20-21, 28-29. Further, he ignores the allegations 21 indicating Farr took actions beyond that of a mere bystander, 22 including that Farr met with the individual who called the 23 police, FAC ¶ 26, that he entered the home searching for 24 Plaintiff, id. ¶ 27, he found Plaintiff in the bedroom and asked 25 Plaintiff to leave, id. ¶ 28, and he told Plaintiff he would be 26 arrested if he did not leave the residence, id. ¶ 40. Taking all 27 of these allegations as true and drawing inferences in favor of 28 the non-moving party, the Court finds Plaintiff has plausibly 1 alleged that Farr was an integral part of the interaction and not 2 merely a bystander. See e.g. Chuman v. Wright, 76 F.3d 292, 294- 3 295 (9th Cir. 1996)(explaining the integral participation theory 4 of liability); Hernandez v. Contra Costa County, Case No. 20-cv- 5 01183-AGT, 2020 WL 3078119, at *1-2 (N.D. Cal. June 10, 2020) 6 (denying motion to dismiss by supervising officers where “[the 7 supervising officers on scene] plausibly could have physically 8 intervened or verbally ordered their subordinates to stop.”). 9 Accordingly, Plaintiff has alleged sufficient facts to support 10 his first, sixth, and ninth claims against Sergeant Farr for 11 false arrest/imprisonment. 12 Nor does Farr’s argument that the sixth claim fails under 13 Katzberg v. Regents of Univ. of Cal., 29 Cal.4th 300 (2002), 14 alter the above analysis. Defs. Mot. at 7-8. Defendants’ 15 briefing as to whether there is a private right of action for 16 false arrest under Cal. Const., Art. I, Section 13 does not 17 establish this claim is foreclosed as a matter of law. Accord 18 Estate of Osuna v. County of Stanislaus, 392 F.Supp.3d 1162, 19 1178-1179 (E.D. Cal. 2019) (finding defendant’s insufficient 20 briefing on the Katzberg analysis did not support dismissal of 21 plaintiff’s Cal. Const., Art. I, Section 13 claim); Shen v. 22 Albany Unified Sch. Dist., 3:17-CV-02478-JD, 2018 WL 4053482, at 23 *4 (N.D. Cal. Aug. 24, 2018) (“Defendants have not done 24 [Katzberg] justice by making what is effectively a passing 25 reference to it in their briefs, and the Court declines to take 26 it up in that underdeveloped form.”). Indeed, Defendants did not 27 respond to Plaintiff’s legal arguments, see Pl.’s Opp’n at 9-10, 28 in support of the sixth claim being cognizable. See Defs.’ 1 Reply. Thus, Defendants’ Katzberg argument fails. 2 For these reasons, the Court denies Defendants’ motion as to 3 the first, sixth, and ninth claims against Sergeant Farr. 4 b. Third Claim: Retaliation 5 Sergeant Farr also seeks to dismiss Plaintiff’s third claim 6 for retaliation pursuant to Section 1983. Defs.’ Mot. at 8-9; 7 Defs.’ Reply at 6. To bring a First Amendment retaliation claim, 8 plaintiff must plausibly plead: (1) the plaintiff engaged in 9 constitutionally protected First Amendment activity such as 10 speech; (2) the defendants’ action caused the plaintiff to suffer 11 an injury that would chill a person of ordinary firmness from 12 continuing to engage in the protected activity; and (3) there was 13 a causal relationship between the plaintiff’s protected activity 14 and the defendants’ conduct. Mulligan v. Nichols, 835 F.3d 983, 15 988 (9th Cir. 2016)(internal citations omitted). “At the 16 pleading stage, the complaint must simply allege plausible 17 circumstances connecting the defendant’s retaliatory intent to 18 the suppressive conduct, and motive may be shown with direct or 19 circumstantial evidence.” Koala v. Khosla, 931 F.3d 887, 905 20 (9th Cir. 2019) (internal citation and quotations marks omitted); 21 see also Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 22 (“Because direct evidence of retaliatory intent rarely can be 23 pleaded in a complaint, allegation of a chronology of events from 24 which retaliation can be inferred is sufficient to survive 25 dismissal.”). 26 Farr argues Plaintiff did not sufficiently allege the third 27 element: causal connection. Defs.’ Mot. at 9. Specifically, 28 Farr contends that there is no allegation he was informed of 1 Plaintiff’s disability and thus there can be no causal connection 2 to his failure to intervene on Pasley’s retaliatory use of force. 3 Id. But as Plaintiff points out, this ignores the allegations 4 that Sergeant Farr was present when Plaintiff informed Officer 5 Pasley of his “physical disability caused by a previous shoulder 6 surgery to his left arm which required the site of the injury to 7 be treated with care.” FAC ¶¶ 27-32, 41. Taking these 8 allegations together and drawing inferences in Plaintiff’s favor, 9 the Court may infer that Farr heard what Plaintiff told Pasley 10 and thus was informed of his disability.2 11 Because Plaintiff has sufficiently alleged a causal 12 connection, the Court denies Defendants’ motion as to the third 13 claim against Sergeant Farr. 14 c. Second and Seventh Claims: Excessive Force 15 Chief Harr and Sergeant Farr move to dismiss Plaintiff’s 16 second claim for excessive force pursuant to 42 U.S.C. Section 17 1983 and seventh claim for excessive force pursuant to Cal. 18 Const., Art. I. Section 13. Defs.’ Mot. at 10-14; Defs.’ Reply 19 at 4-6. The Court previously dismissed Plaintiff’s second and 20 seventh excessive force claims against Harr for lack of factual 21 detail. Prior Order at 6-10. Defendants argue Plaintiff still 22 has not alleged conduct on the part of Harr or Farr that would 23 24 2 Because these allegations are sufficient to state a causal 25 connection, the Court need not reach the parties’ additional arguments. See Pl.’s Opp’n at 8-9; Defs.’ Reply at 6-7. 26 Further, part of Defendants’ argument regarding this claim ran 27 over the Court’s page limit on reply memorandum and was not considered by the Court. See Defs.’ Reply at 7; see also Order 28 re Filing Requirements (“Order”) at 1, ECF No. 3-2. 1 allow for individual liability. Defs.’ Mot. at 10-14; Defs.’ 2 Reply at 4-6. 3 To state a Section 1983 claim against a supervisor, a 4 plaintiff must allege: “(1) his or her personal involvement in 5 the constitutional deprivation, or (2) a sufficient causal 6 connection between the supervisor’s wrongful conduct and the 7 constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 8 (9th Cir. 2011) (internal citation omitted); see also Larez v. 9 City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991) 10 (explaining a “supervisor will rarely be directly and personally 11 involved in the same way as are the individual officers who are 12 on the scene inflicting constitutional injury” yet “this does not 13 prevent a supervisor from being held liable in his individual 14 capacity”). 15 As to Chief Harr, Defendant contends the FAC contains only 16 conclusory allegations that Harr failed to adequately train, 17 supervise and discipline officers. Defs.’ Reply at 4 (referring 18 the Court to FAC ¶ 86.) The Court agrees. However, in 19 opposition Plaintiff set forth a number of facts from police 20 reports that he could add to the complaint. Pl.’s Opp’n at 6-7. 21 Thus, amendment would not be futile. Accordingly, the second and 22 seventh claims as to Chief Harr are dismissed but with leave to 23 amend. 24 As to Sergeant Farr, Defendant concedes that Farr was 25 present at the scene when Officer Pasley used force on Plaintiff, 26 but insists that Plaintiff’s cited authority, Lolli v. County of 27 Orange, 351 F.3d 410, 418 (9th Cir. 2003), is distinguishable. 28 Defs.’ Reply at 4-5. But as Defendants themselves summarize: “In 1 Lolli, the Court found a supervising sheriff liable because he 2 did not intervene in an altercation between an inmate and another 3 officer.” Id. at 4. Those facts are similar to what Plaintiff 4 has alleged here, that Sergeant Farr did not intervene in an 5 altercation between Plaintiff and Officer Pasley. See FAC ¶¶ 32- 6 39. Specifically, Plaintiff alleges Farr did not intervene 7 despite being present when Plaintiff informed Officer Pasley of 8 his “physical disability caused by a previous shoulder surgery to 9 his left arm which required the site of the injury to be treated 10 with care.” FAC ¶¶ 27-32, 41, 56-57. These allegations are 11 sufficient to maintain excessive force claims against Farr. 12 Accordingly, Defendants’ motion to dismiss the second and 13 seventh claims as to Sergeant Farr is denied. 14 d. Eighth Claim: Bane Act 15 Chief Harr and Sergeant Farr also seek to dismiss 16 Plaintiff’s eighth claim for violation of the Bane Act. Defs.’ 17 Mot. at 14. The Court previously dismissed this claim for 18 failure to allege specific intent to violate Plaintiff’s rights 19 as required under Reese v. Cty. of Sacramento, 888 F.3d 1030, 20 1043 (9th Cir. 2018). Prior Order at 10-12. The FAC does not 21 remedy the deficiencies identified by the Court in its prior 22 order, and Plaintiff’s opposition rehashes the same legal 23 arguments that the Court previously rejected. Pl.’s Opp’n at 11- 24 12. Accordingly, this claim is dismissed. Further, the Court 25 finds it appropriate to dismiss this claim with prejudice. See 26 Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002) (finding 27 leave to amend need not be granted when amendment would be 28 futile). Given that Plaintiff has already amended his complaint, 1 further amendment would be futile. See Zucco Partners, LLC v. 2 Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (noting that 3 where the plaintiff has previously been granted leave to amend 4 and subsequently failed to cure deficiencies the district court’s 5 discretion to deny leave to amend is particularly broad). 6 e. Tenth, Eleventh, and Twelfth Claims 7 Finally, in a short paragraph tacked on to the final page of 8 their motion, Chief Harr and Sergeant Farr make the sweeping ask 9 that Plaintiff’s tenth claim for assault/battery, eleventh claim 10 for intentional infliction of emotional distress (“IIED”), and 11 twelfth claim for negligence be dismissed. Defs.’ Mot. at 15. 12 Yet they cite to only one factually dissimilar case to support 13 their argument that each of these three claims should be 14 dismissed. Id. Further, they offer no additional argument 15 regarding these claims in their reply brief. See Defs.’ Reply. 16 This is plainly insufficient. Defendants’ motion is therefore 17 denied as to Plaintiff’s tenth, eleventh, and twelfth claims 18 against Harr and Farr. 19 20 III. SANCTIONS 21 Defendants exceeded the Court’s 5-page limit on reply 22 memoranda. See Reply; see also Order re Filing Requirements 23 (“Order”) at 1, ECF No. 3-2. Violations of the Court’s standing 24 order require the offending counsel, not the client, to pay 25 $50.00 per page over the page limit to the Clerk of Court. Order 26 at 1. Moreover, the Court did not consider arguments made past 27 the page limit. Id. Defendants’ reply brief exceeded the 28 Court’s page limit by 1.5 pages. Accordingly, Defendants’ em EERIE US MERIDIEN INO IE III EIDE OS ESE ISDE OED 1 counsel must send a check payable to the Clerk for the Eastern 2 District of California for $75.00 no later than seven days from 3 the date of this order. 4 5 Iv. ORDER 6 For the reasons set forth above, the Court DENIES 7 Plaintiff’s motion to strike. 8 The Court GRANTS IN PART and DENIES IN PART Defendants’ 9 | Motion to Dismiss: 10 1. Defendants’ Motion is DENIED as to Plaintiff’s fourth 11 and fifth claims against the City of Gridley and Gridley Police 12 Department; as to the first, third, sixth, and ninth claims 13 against Sergeant Farr; as to the second and seventh claims 14 against Sergeant Farr; and as to the tenth, eleventh, and 15 twelfth claims against Chief Harr and Sergeant Farr. 16 2. Defendants’ Motion is GRANTED WITHOUT PREJUDICE as to 17 the second and seventh claims against Chief Harr. 18 3, Defendants’ Motion is GRANTED WITH PREJUDICE as to the 19 eighth claim against Chief Harr and Sergeant Farr. 20 Plaintiff’s amended complaint must be filed within twenty days 21 of this Order. Defendants’ responsive pleading is due twenty days 22 thereafter. 23 IT IS SO ORDERED. 24 Dated: November 16, 2021 25 Me 26 Benlek, sunk 27 28 16