Droz v. County of San Diego ( 2019 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 BLAKE DROZ, Case No.: 19-CV-1277 W (WVG) 14 Plaintiff, ORDER GRANTING DEFENDANTS’ 15 v. MOTIONS TO DISMISS WITH LEAVE TO AMEND [DOCS. 3, 4] 16 COUNTY OF SAN DIEGO, et al., 17 Defendants. 18 19 Pending before the Court are motions to dismiss filed by Defendants County of 20 San Diego and Officer Richard Fischer. The Court decides the matters on the papers 21 submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons stated 22 below, the Court GRANTS the motions [Docs. 3, 4] with leave to amend. 23 24 I. BACKGROUND 25 The following allegations are taken from the Complaint. 26 On March 29, 2017, Plaintiff Blake Droz was picked up by a taxi in Old Town San 27 Diego, and he asked the driver to take him to Little Italy. (Compl. [Doc. 1] ¶ 16.) 28 “DROZ fell asleep in the back of the taxi and when he woke up, the taxi driver was 1 driving him through Carlsbad, California (dozens of miles in the wrong direction).” (Id. 2 ¶ 17.) Droz demanded that the driver stop and let him out of the taxi. (Id. ¶ 18.) 3 At some point, the taxi driver called 911 and stated that Droz refused to pay the 4 fare and pointed a gun at the driver’s head. (Compl. ¶ 19.) Droz then allegedly fled the 5 scene. (Id.) 6 Droz denies he had a gun and denies he threatened the driver. (Compl. ¶ 20.) 7 However, Carlsbad Police Department officers responded to the call and requested 8 support from a San Diego Sheriff’s Department canine unit. (Id. ¶ 21.) Sheriff’s Officer 9 Richard Fischer responded to the call. (See id. ¶¶ 22, 24.) 10 Carlsbad Officers and Officer Fischer eventually found Droz, who was walking 11 away from the officers. (Compl. ¶¶ 22, 23.) When Droz saw Officer Fischer with his 12 canine, Droz “immediately went down to the ground as instructed.” (Id. ¶ 24.) Despite 13 complying with the officers’ commands to “get on the ground,” Officer Fischer released 14 his canine, which began biting Droz. (Id. ¶¶ 25, 26.) Officer Fischer then jumped on 15 Droz and started punching him while the canine was biting Droz’s arm. (Id. ¶ 27.) After 16 approximately one minute and twenty-three seconds, the canine released Droz’s arm, and 17 Droz was arrested and booked. (Id. ¶¶ 31, 33.) Droz contends he suffered serious 18 injuries as a result of the canine attack. (Id. ¶ 34.) 19 On July 10, 2019, Droz filed this lawsuit against Officer Fischer and the County of 20 San Diego. The Complaint alleges causes of action for (1) violation of the Fourth 21 Amendment under 42 U.S.C § 1983 against Officer Fischer, and (2) failure to properly 22 train and discipline under 42 U.S.C. § 1983 against the County. Defendants now seek to 23 dismiss the lawsuit on the basis that Droz’s causes of action are time barred. The County 24 also argues that Droz has failed to state facts supporting the cause of action for failure to 25 train and discipline. 26 27 28 1 II. LEGAL STANDARD 2 The court must dismiss a cause of action for failure to state a claim upon which 3 relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) 4 tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 5 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either 6 for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. 7 Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the 8 motion, a court must “accept all material allegations of fact as true and construe the 9 complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty., 487 10 F.3d 1246, 1249 (9th Cir. 2007). But a court is not required to accept legal conclusions 11 couched as facts, unwarranted deductions, or unreasonable inferences. Papasan v. Allain, 12 478 U.S. 265, 286 (1986); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 13 2001). 14 Complaints must contain “a short plain statement of the claim showing that the 15 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court has interpreted 16 this rule to mean that “[f]actual allegations must be enough to rise above the speculative 17 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007). The allegations in the 18 complaint must “contain sufficient factual matter, accepted as true, to state a claim to 19 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 20 Twombly, 550 U.S. at 570). 21 22 III. DISCUSSION 23 Defendants argue Droz’s lawsuit is time barred because it was filed more than two 24 years after his arrest. (Fischer P&A [Doc. 3-1] 1:21–25; County P&A [Doc. 4-1] 2:1–5.) 25 Droz responds that his lawsuit is timely because the statute of limitations was tolled 26 during the pendency of his criminal proceedings. (Opp’n [Doc. 6] 2:8–13.) 27 As an initial matter, the parties agree that Droz’s causes of action are subject to 28 California’s two-year statute of limitations for personal-injury claims. (Fishcher P&A 1 3:17-28; County P&A 4:4-18; Opp’n 5:2-9.) Additionally, Defendants do not dispute in 2 || their replies that under California Government Code § 945.3, the statute of limitations 3 || was tolled during the pendency of Droz’s criminal case. (See Fishcher Reply [Doc. 11]; 4 || County Reply [Doc. 10].) Rather, Defendants argue that Droz’s opposition improperly 5 ||refers to documents attached to the opposition and that he failed to allege the necessary 6 in the Complaint. (Fishcher Reply 2:14-3:13; County Reply 1:24—3:5.) 7 In order to avoid dismissal based on the statute of limitations, Droz must allege 8 in the Complaint that demonstrate tolling applies. Udom v. Fonseca, 846 F.2d 9 || 1236, 1238 (9th Cir. 1988). Because Droz has failed to allege such facts, the Complaint 10 |} must be dismissed. 11 However, in his opposition, Droz requests leave to amend the Complaint. Leave to 12 ||amend shall be liberally granted unless the deficiencies in a complaint cannot be cured by 13 || additional pleading. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Because it 14 || appears that Droz will be able to plead facts demonstrating tolling, the Court will grant 15 leave to amend. 16 17 ||IV. CONCLUSION AND ORDER 18 For the foregoing reasons, the Court GRANTS the County and Officer Fischer’ 19 || motions to dismiss [Docs. 3, 4] WITH LEAVE TO AMEND. In light of the finding 20 || that the claims are time barred, the Court need not decide the additional issues raised in 21 ||the County’s motion. Plaintiff shall have until December 18, 2019 to file a First 22 || Amended Complaint. 23 IT IS SO ORDERED. 24 Dated: December 4, 2019 \ 25 [pe Lor 26 Hn. 1 omas J. Whelan 17 United States District Judge 28