Fanaro v. County of Contra Costa ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEARHAMEL JORDAN FANARO, Case No. 3:19-cv-03247-WHO 8 Plaintiff, ORDER GRANTING DEPUTY 9 v. DEFENDANTS’ MOTION TO DISMISS 10 COUNTY OF CONTRA COSTA, et al., Re: Dkt. Nos. 52, 53 Defendants. 11 12 13 Plaintiff Jearhamel Fanaro brings claims arising out of a brutal attack that occurred in 14 Contra Costa County’s Martinez Detention Facility. In addition to bringing suit against the 15 County and his inmate attackers, Fanaro seeks to hold Sheriff’s Deputies Omar De Leon and 16 Antonio Rosas accountable for allegedly facilitating his attack, or least overlooking evidence that 17 it was taking place. Before me is their motion to dismiss some but not all of the claims and 18 theories pleaded against them.1 For the reasons set forth below, the motion is GRANTED. 19 BACKGROUND 20 I detailed Fanaro’s allegations in my October 15, 2019 Order granting in part and denying 21 in part the Contra Costa County Defendants’ motion to dismiss; I incorporate that discussion by 22 reference here. See Granting in Part and Denying in Part the County Defendants’ Motion to 23 Dismiss (“County MTD Order”) [Dkt. No. 36]. Fanaro filed a Second Amended Complaint in 24 response to that Order on October 30, 2019. See Second Amended Complaint (“SAC”) [Dkt. No. 25 39]. De Leon filed a motion to dismiss on December 11, 2019, and Rosas joined his motion the 26 following day. See Motion to Dismiss (“MTD”) [Dkt. No. 52]; Joinder in Defendant De Leon’s 27 1 Motion [Dkt. No. 53]. 2 LEGAL STANDARD 3 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 4 if it fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). To survive a 5 Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief 6 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A claim is 7 facially plausible when the plaintiff pleads facts that “allow the court to draw the reasonable 8 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 9 678 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant has 10 acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a 11 plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” 12 Twombly, 550 U.S. at 555, 570. 13 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 14 court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the 15 plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is 16 not required to accept as true “allegations that are merely conclusory, unwarranted deductions of 17 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 18 2008). If the court dismisses the complaint, it “should grant leave to amend even if no request to 19 amend the pleading was made, unless it determines that the pleading could not possibly be cured 20 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 21 DISCUSSION 22 I. MONELL LIABILITY 23 De Leon and Rosas move to dismiss claims one, two, and four insofar as they seek to 24 proceed under a theory of Monell liability. MTD 4-6. Fanaro does not oppose the motion to 25 dismiss claims two and four. See Opposition (“Oppo.”) [Dkt. No. 55] 12. As for claim one, 26 Fanaro seems to misunderstand the nature of the defendants’ motion. They do not contend that 27 Section 1983 liability is foreclosed, but rather that Monell is the wrong vehicle when it comes to 1 are not public entities; claim one cannot proceed against them insofar as it rests on a theory of 2 Monell liability. The motion is GRANTED. Claims two and four are DISMISSED WITH 3 PREJUDICE and claim one is DISMISSED insofar as it rests on Monell. 4 I also note that Fanaro again wrongly criticizes the defendants for citing district court cases 5 that have not been published in the official reporter. Oppo. 9-10. I addressed this error in my 6 October 15, 2019 Order on the County Defendants’ Motion to Dismiss. County MTD Order 7 n.4. 7 The rule Fanaro cites applies to cases that are listed “not for citation.” See Civ. L.R. 3-4(e). As 8 long as they do not bear this warning, district court cases published through Westlaw and Lexis 9 are certainly citable. Fanaro should not repeat this argument in future filings. 10 II. STATE DUE PROCESS CLAUSE 11 Article I section 7 of the California Constitution provides, “A person may not be deprived 12 of life, liberty, or property without due process of law or denied equal protection of the laws.” 13 Cal. Const. art. I, § 7. De Leon and Rosas move to dismiss Fanaro’s claim for money damages for 14 the due process violation alleged in claim six. As set forth below, the positions Fanaro articulates 15 in response are flawed in several respects. 16 The California Supreme Court has adopted a test to determine whether to recognize a tort 17 action for damages under a given constitutional provision where the language and history of the 18 provision itself does not clearly indicate the presence or absence of such a right.2 See Katzberg v. 19 Regents of Univ. of California, 29 Cal. 4th 300, 324-25 (2002). The factors are: (i) “whether an 20 adequate remedy exists,” (ii) “the extent to which a constitutional tort action would change 21 established tort law,” (iii) “the nature and significance of the constitutional provision,” and (iv) 22 “the existence of any special factors counseling hesitation in recognizing a damages action.”3 Id. 23 at 317. In Katzberg, the court determined that money damages are not available for a violation of 24 25 2 The test comes from Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 26 U.S. 388, 396 (1971). 27 3 The fourth factor is only considered if the other three factors weigh in favor of recognizing a 1 the due process liberty interest under article I, section 7(a). 4 Id. at 329. In his Opposition, Fanaro 2 concedes that “the first three factors weigh similarly as they do in Katzberg.” Oppo. 13. Still, he 3 asserts that damages should be available because he seeks to protect an interest that is more 4 fundamental than the reputation liberty interest at issue in Katzberg.5 Id. 5 This argument does not square with the reasoning in Katzberg, where the California 6 Supreme Court noted that the due process liberty interest is “both important and fundamental,” 7 which supported finding a right to pursue damages. Katzberg, 29 Cal. 4th at 328. Nonetheless, 8 the Court determined that the importance-of-the-right factor was “not one upon which [it] place[d] 9 great significance” because of the difficulty of ranking different constitutional rights. Id. Similar 10 to Katzberg, given Fanaro’s concession that the other factors weigh against the availability of 11 money damages, the importance-of-the-right factor is not enough to tip the scales in his favor. 12 In addition, Fanaro’s Opposition fails to articulate the due process right that defendants 13 allegedly violated. Fanaro asserts that he seeks to enforce his Eighth Amendment right to be free 14 from cruel and unusual punishment, but the sixth cause of action clearly invokes the due process 15 section of the California Constitution, article I, section 7. And even if Fanaro properly sought to 16 pursue a claim under article I, section 17, California’s prohibition on cruel or unusual punishment, 17 money damages would not be available. See Giraldo v. Dep't of Corr. & Rehab., 168 Cal. App. 18 4th 231, 256 (2008). 19 Money damages are not available for any of the claims Fanaro has tried to articulate in his 20 sixth cause of action. Accordingly, his claim for money damages in the sixth cause of action is 21 DISMISSED WITH PREJUDICE. 22 III. UNRUH CIVIL RIGHTS ACT 23 The Unruh Act prohibits discrimination on the basis of a long list of protected 24 characteristics, including race. Cal. Civ. Code § 51(b). De Leon and Rosas move to dismiss 25 4 Chief Judge Phyllis J. Hamilton of this district declined to extend Katzberg to bar recovery of 26 backpay for a violation of a due process property interest. Walls v. Cent. Contra Costa Transit Auth., No. 08-cv-0224-PJH, 2012 WL 581362, at *3-*4 (N.D. Cal. Feb. 22, 2012). 27 1 Fanaro’s seventh claim on the grounds that he failed to include any race-based allegations in his 2 tort claim6 and that the Second Amended Complaint alleges no facts to suggest that their actions 3 or inactions were motivated by race. MTD 7-13. 4 Fanaro counters that the race allegations in his complaint merely detail the motivation 5 behind actions that were well documented in his tort claim. Oppo. 14-16. In addition, he asserts 6 that the deputies’ knowledge that he was Filipino-American—whereas the Norteños were 7 primarily Latino—give rise to a plausible inference that they discriminated against him based on 8 race when they supported the Norteños’ attack on him. Id. at 16-17. 9 Fanaro’s allegations do not give rise to a plausible inference of racial discrimination.7 In 10 my prior Order I gave Fanaro the opportunity to amend his “threadbare” pleadings related to race, 11 yet the Second Amended Complaint provides no further detail. See Order 10; SAC ¶¶ 23 (alleging 12 that the classification interview involves questions about race), 42 (alleging that Fanaro, a 13 Filipino-American, was housed in a “primarily Latin-American module”), 104 (alleging that he 14 was not afforded equal protection because of his race). His allegations are entirely conclusory. 15 The mere fact that the deputies may have been aware of Fanaro’s race does not make a racial 16 discrimination claim plausible, nor does the fact that most Norteños are a different race. Fanaro 17 has already had the opportunity to amend; the Unruh Civil Rights Act claim is DISMISSED 18 WITH PREJUDICE. 19 IV. NEGLIGENT FAILURE TO MAINTAIN POLICIES, CUSTOMS, OR PRACTICES 20 Fanaro alleges that De Leon and Rosas were negligent when they maintained or failed to 21 maintain policies, customs, or practices to prevent his attack. SAC ¶ 108. The defendants argue 22 that the Second Amended Complaint is insufficient because it fails to allege that they had the 23 authority to determine the policies, customs, or practices of the Contra Costa County Sheriff’s 24 Office. MTD 9-10. Fanaro responds, without citing to any authority, that the defendants can be 25 26 6 I took judicial notice of the tort claim in my prior Order. County MTD Order 12 n.9. 27 1 liable even if they were not supervisors.® Oppo. 17. But his theory of liability rests on policies, 2 || customs, and practices; to be responsible for those, De Leon and Rosas must have had some 3 authority over them. Fanaro fails to plead any such control; he expressly pleading that they were 4 || deputies. Accordingly, the eighth claim is DISMISSED WITH PREJUDICE. 5 CONCLUSION 6 For the reasons set forth above, the motion to dismiss by De Leon and Rosas is 7 || GRANTED. 8 IT IS SO ORDERED. 9 Dated: January 8, 2020 10 . 11 ® liam H. Orrick 12 United States District Judge © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28 8 He seems to define “maintain” to mean “follow,” which would expand liability to the lowest- level employees for practices they had no part in creating.