Mann v. City of Chula Vista ( 2020 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 CARLOS EUGENE MANN, Case No.: 18-cv-2525-WQH-MDD 13 Plaintiff, ORDER 14 v. 15 CITY OF CHULA VISTA; CHULA VISTA POLICE 16 DEPARTMENT; OFFICER 17 FREDERICO DOMINGUEZ; OFFICER Y. MARTINEZ; and 18 DOES 1-10, inclusive, 19 Defendants. 20 HAYES, Judge: 21 The matter before the Court is the Motion to Dismiss Plaintiff’s Second Amended 22 Complaint, or in the Alternative to Strike Portions Thereof filed by Defendants City of 23 Chula Vista, Chula Vista Police Department, Officer Federico Dominguez, and Officer 24 Yamil Martinez. (ECF No. 46). 25 I. PROCEDURAL BACKGROUND 26 On November 5, 2018, Plaintiff Carlos Eugene Mann, proceeding pro se, filed a 27 Complaint against Defendants City of Chula Vista (the “City”), Chula Vista Police 28 1 Department (“CVPD”), CVPD Officer Federico Dominguez, CVPD Officer Yamil 2 Martinez, and Does 1 through 10. (ECF No. 1). On July 31, 2019, Plaintiff filed an 3 Amended Complaint, alleging claims against Defendants for violations of 42 U.S.C. § 1983 4 and California state law. (ECF No. 27). 5 On November 7, 2019, the Court issued an Order granting Defendants’ Motion to 6 Dismiss the Amended Complaint. (ECF No. 34). The Court determined that Plaintiff failed 7 to state a claim against Defendants under § 1983 or California law. The Court dismissed 8 the Amended Complaint without prejudice and with leave to file a motion for leave to 9 amend. 10 On April 6, 2020, the Court granted Plaintiff’s Motion for Leave to File a Second 11 Amended Complaint. (ECF No. 44). In the Second Amended Complaint (“SAC”), Plaintiff 12 brings claims against Defendants for 1) violation of 42 U.S.C. § 1983 and the California 13 Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51, et. seq.; 2) false imprisonment; 14 3) negligence, and negligent training, directing, supervising, and controlling under sections 15 11116.6 and 11117 of the California Penal Code; 4) false imprisonment; 5) assault and 16 battery; 6) negligence, negligent training and supervising, and negligent infliction of 17 emotional distress; 7) negligent training, retaining, supervising, managing, directing, and 18 controlling; 8) intentional infliction of emotional distress; 9) negligent infliction of 19 emotional distress; 10) defamation/slander/libel; 11) intentional discrimination in violation 20 of the Unruh Act and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1000e-2(a); 21 12) failure to prevent discrimination and harassment in violation of section 12940(k) of the 22 California Government Code; and 13) selective and vindictive criminal processing. 23 Plaintiff seeks compensatory damages, special damages in the amount of $2,000,000, 24 punitive damages, equitable relief, declaratory relief, costs, and “other further relief as this 25 Court may deem just and proper.” (ECF No. 39-1 at 66). Plaintiff also requests that the 26 Court “purg[e] all criminal information and DNA possession of CVPD regarding this 27 case[.]” (Id.). 28 1 On April 20, 2020, Defendants filed a Motion to Dismiss Plaintiff’s SAC, or in the 2 Alternative to Strike Portions Thereof. (ECF No. 46). On May 12, 2020, Plaintiff filed an 3 Opposition to Defendants’ Motion to Dismiss. (ECF No. 47). On May 19, 2020, 4 Defendants filed a Reply. (ECF No. 48). On May 20, 2020, Plaintiff filed an Objection to 5 the Reply. (ECF No. 49). On May 21, 2020, Defendants filed a Response to the Objection. 6 (ECF No. 50). 7 II. ALLEGATIONS IN THE SECOND AMENDED COMPLAINT 8 On June 26, 2018, Plaintiff’s former girlfriend, Maribel Contreras, “reviewed 9 [Plaintiff’s] social media emails through his cell phone.” (ECF No. 39-1 ¶ 63). When 10 Contreras saw the emails, she “bec[a]me extremely violent” and “physically attacked 11 [Plaintiff] . . . .” (Id. ¶ 62). Contreras “snatch[ed]” Plaintiff’s $800 cell phone, ran into the 12 bathroom, and threw the phone into the toilet. (Id. ¶ 63). Contreras pushed Plaintiff against 13 the bathroom wall, causing Plaintiff severe pain in his back, neck, and shoulders. Contreras 14 slapped Plaintiff’s face, causing Plaintiff “a moment of blindness.” (Id. ¶ 65). Plaintiff 15 attempted to call 911 on the home phone, but Contreras grabbed the phone out of Plaintiff’s 16 hands. Plaintiff “defend[ed] himself [ ] out of fear [of] death” by putting Contreras in an 17 “Arm Bar.” (Id. ¶ 66). Plaintiff “was on his knees while being attacked when he contacted 18 911 from his home phone . . . .” (Id. ¶ 38). 19 CVPD Officers Dominguez and Martinez arrived at Plaintiff’s residence and took 20 separate statements from Plaintiff and Contreras. The Officers asked Plaintiff, “[W]hat 21 happened that night?” (Id. ¶ 114). Officer Dominguez’s “tone and posture” “led Plaintiff 22 to believe that [Officer Dominguez] was friendly and was going to escort Contreras out of 23 Plaintiff[’]s residence.” (Id. ¶ 117). Plaintiff made a “statement that he put Contreras in an 24 Arm Bar . . . .” (Id. ¶ 165). Contreras alleged that Plaintiff strangled her. The Officers 25 determined that Plaintiff committed a crime and that Plaintiff was the dominant aggressor. 26 Plaintiff was arrested for domestic violence assault with injury and assault with a 27 deadly weapon likely to cause great bodily injury in violation of sections 273.5 and 28 245(a)(4) of the California Penal Code. The Officers told Plaintiff “to turn around and place 1 his hands behind his back . . . .” (Id. ¶ 169). Officer Dominguez handcuffed Plaintiff, double 2 locking the handcuffs and checking for tightness. Plaintiff “complained to Officer 3 Dominguez [ ] about the handcuffs being too tight . . . .” (Id. ¶ 105). Officer Dominguez 4 “ignor[ed] the complaints and demand to loosen the handcuffs.” (Id.). Plaintiff suffered 5 “bruises on both of his wrists [that] lasted for several weeks.” (Id. ¶ 106). Contreras was 6 given domestic violence resources and was not arrested. 7 After Plaintiff was “frisked, handcuffed, and detained,” Plaintiff “informed Officer 8 Dominguez [ ] that he was a disabled person under prescribed medication, and needed 9 water for his medical condition . . . .” (Id. ¶ 21). Officer Dominguez “refused[,] aggravating 10 [Plaintiff’s] disabilities.” (Id.). Plaintiff was transported to a detention facility and was read 11 his Miranda1 rights after his intake paperwork was complete. No charges against Plaintiff 12 were filed. The Officers’ actions caused aggravation of Plaintiff’s PTSD and hypertension, 13 requiring him to attend doctor’s appointments, take “additional medication,” and attend 14 “neurology brain balancing and Cognitive Processing Therapy.” (Id. ¶ 72). 15 III. LEGAL STANDARD 16 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure 17 to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state 18 a claim for relief, a pleading “must contain . . . a short and plain statement of the claim 19 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 20 12(b)(6) “is proper only where there is no cognizable legal theory or an absence of 21 sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular 22 Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation omitted). 23 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 24 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 25 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 26 27 1 Miranda v. Arizona, 384 U.S. 436 (1966). 28 1 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 2 court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Id. (citation omitted). However, “a plaintiff’s obligation to provide the ‘grounds’ 4 of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 5 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 6 (alteration in original) (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept as 7 true allegations that are merely conclusory, unwarranted deductions of fact, or 8 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 9 2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual 10 content, and reasonable inferences from that content, must be plausibly suggestive of a 11 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 12 2009) (citation omitted). 13 IV. JUDICIAL NOTICE 14 Defendants request that the Court take judicial notice of section 501 of the City’s 15 Charter and chapter 2.09 of the City’s Municipal Code, attached as exhibits to the Motion 16 to Dismiss. “As a general rule, ‘a district court may not consider any material beyond the 17 pleadings in ruling on a Rule 12(b)(6) motion.’” Lee v. City of Los Angeles, 250 F.3d 668 18 688 (9th Cir. 2001) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled 19 on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)). 20 “There are, however, two exceptions to the requirement that consideration of extrinsic 21 evidence converts a 12(b)(6) motion to a summary judgment motion.” Id. “First, a court 22 may consider ‘material which is properly submitted as part of the complaint’ on a motion 23 to dismiss without converting the motion to dismiss into a motion for summary judgment.” 24 Id. (quoting Branch, 14 F.3d at 453). “Second, under Fed. R. Evid. 201, a court may take 25 judicial notice of ‘matters of public record.’” Id. at 688-89 (quoting Mack v. S. Bay Beer 26 Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986)). The City’s Charter and its Municipal Code 27 are public records and proper subjects of judicial notice. Defendants’ request for judicial 28 notice is granted. 1 V. CLAIMS AGAINST CVPD 2 Defendants contend that the Court should dismiss or strike CVPD as a Defendant 3 because CVPD is a department of the City and a duplicative Defendant. Plaintiff contends 4 that he sufficiently states claims against all Defendants. 5 A city police department is an entity separate from the city and subject to suit. See 6 Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 605 (9th Cir. 1986) 7 (holding that the police department of a charter city may be sued in federal court), 8 superseded by statute on other grounds as stated in Seater v. Cal. State Univ., No. 93- 9 56688, 1995 U.S. App. LEXIS 3652 (9th Cir. Feb. 22, 1995). A city and its police 10 department are both proper defendants where a plaintiff alleges distinct conduct by the 11 entities. See id. However, courts routinely dismiss police departments as duplicative 12 defendants where the claims against a city and its police department arise from the same 13 facts. See, e.g., Goodfellow v. Ahren, No. 13-04726 RS, 2014 U.S. Dist. LEXIS 42397, at 14 *33 (N.D. Cal. Mar. 26, 2014) (holding that claims against a city were “duplicative” of 15 claims against its police department and construing claims against the police department 16 as claims against the city); Herrera v. City of Sacramento, No. 2:13-cv-00456-JAM-AC, 17 2013 U.S. Dist. LEXIS 109119, *6 (E.D. Cal. Aug. 1, 2013) (“Because the Sacramento 18 Police Department is a department of the City, it is redundant to name both.”); Brouwer v. 19 City of Manteca, No. 107-CV-1362 AWI DLB, 2008 U.S. Dist. LEXIS 75843, at *9 (E.D. 20 Cal. July 18, 2008) (“Because Defendant Manteca Police Department is a subdivision of 21 Defendant City of Manteca, it is an unnecessary duplicative Defendant, and it will be 22 dismissed.”). 23 In this case, section 501 of the City’s Charter vests the City with the authority to 24 establish a police department. (See Ex. A to Notice of Lodgment (“NOL”), ECF No. 46-5 25 at 5). Chapter 2.09 of the City’s Municipal Code established CVPD. (See Ex. B. to NOL, 26 ECF No. 46-5 at 12). In the SAC, Plaintiff alleges the same claims against the City and 27 CVPD premised on the same facts. The Court concludes that the claims against CVPD are 28 1 duplicative of the claims against the City. Chula Vista Police Department is dismissed as a 2 Defendant. 3 VI. FIRST CAUSE OF ACTION - 28 U.S.C. § 1983 AND UNRUH ACT 4 Plaintiff brings the first cause of action against all Defendants for violation of the 5 Unruh Act and under 28 U.S.C. § 1983 for violation of the Fourth, Fifth, Eighth, and 6 Fourteenth Amendments of the United States Constitution. Defendants contend that none 7 of the alleged conduct by Officer Dominguez or Martinez violated Plaintiff’s constitutional 8 rights or the Unruh Act. Defendants contend that Plaintiff fails to state facts sufficient to 9 support an inference that the Officers lacked probable cause to arrest Plaintiff, that the 10 Officers conducted any illegal search, that the Officers used excessive force while 11 handcuffing Plaintiff, that Plaintiff’s statements to the Officers were compelled or coerced 12 during an interrogation or while in custody, that Plaintiff was a prisoner, or that the Officers 13 discriminated against Plaintiff. Defendants assert that the Officers are entitled to qualified 14 immunity. Defendants further contend that Plaintiff fails to state a § 1983 claim against the 15 City because Plaintiff fails to allege that the City had any policy that was the moving force 16 behind any constitutional violation. 17 Plaintiff contends that “the SAC alleges sufficient facts” to state a claim against 18 Defendants for violation of § 1983 and the Unruh Act. (ECF No. 47 at 2). Plaintiff contends 19 that “the SAC demonstrates that Plaintiff[’]s arrest was unlawful.” (Id.). Plaintiff contends 20 that Defendants are not entitled to qualified immunity.2 21 A. 28 U.S.C. § 1983 22 To state a claim against an individual defendant under § 1983, a plaintiff must show 23 “(1) that a person acting under color of state law committed the conduct at issue, and (2) 24 25 2 Plaintiff asserts that Defendants’ Motion to Dismiss “is improper and violates the Federal Rule[s] of 26 Civil Procedure.” (ECF No. 47-1 at 3). Plaintiff requests that the Court sanction Defendants under Rule 11 of the Federal Rules of Civil Procedure. (ECF No. 47 at 3). The Court declines to consider Plaintiff’s 27 request for sanctions. See Fed. R. Civ. P. 11(c)(2) (“A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b).”). 28 1 that the conduct deprived the claimant of some right, privilege, or immunity protected by 2 the Constitution or laws of the United States.” Leer v. Murphy, 844 F.2d 628, 632-33 (9th 3 Cir. 1988) (citations omitted). “A person deprives another ‘of a constitutional right, within 4 the meaning of section 1983, if he does an affirmative act, participates in another’s 5 affirmative acts, or omits to perform an act which he is legally required to do that causes 6 the deprivation of which [the plaintiff complains].’” Id. at 633 (emphasis omitted) (quoting 7 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). The plaintiff must link each 8 defendant’s actions or inactions with the plaintiff’s claims by setting forth “specific facts 9 as to each individual defendant’s” actions. Id. at 634. 10 “To bring a § 1983 claim against a local government entity, a plaintiff must plead 11 that a municipality’s policy or custom caused a violation of the plaintiff’s constitutional 12 rights.” Ass’n for L.A. Deputy Sheriffs v. Cty. of Los Angeles, 648 F.3d 986, 992-93 (9th 13 Cir. 2011) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1976)). The plaintiff 14 must show “(1) that he possessed a constitutional right of which he was deprived; (2) that 15 the municipality had a policy; (3) that this policy ‘amounts to deliberate indifference’ to 16 the plaintiff’s constitutional right; and (4) that the policy is the ‘moving force behind the 17 constitutional violation.’” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting 18 City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)). 19 1. Fourth Amendment 20 The Fourth Amendment protects the people against “unreasonable searches and 21 seizures.” U.S. Const. amend. IV. Under the Fourth Amendment, a warrantless arrest is 22 reasonable where the officer has probable cause to believe a crime has been or is being 23 committed. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Probable cause exists 24 where “the facts and circumstances within [the officer’s] knowledge . . . were sufficient to 25 warrant a prudent man in believing that the petitioner had committed or was committing 26 an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). A warrant is not required to conduct “a 27 search incident to a lawful arrest.” People v. Diaz, 51 Cal. 4th 84, 90 (2011) (citations 28 omitted), abrogated in part by Riley v. California, 573 U.S. 373 (2014); see United States 1 v. Edwards, 415 U.S. 800, 802-03 (1974) (explaining that the exception to the Fourth 2 Amendment’s warrant requirement for a search incident to lawful arrest “has traditionally 3 been justified by the reasonableness of searching for weapons, instruments of escape, and 4 evidence of crime when a person is taken into official custody and lawfully detained”). 5 The Fourth Amendment requires a police officer making an arrest to use only an 6 amount of force that is objectively reasonable considering the circumstances. See 7 Tennessee v. Garner, 471 U.S. 1, 7-8 (1985). “It is well-established that overly tight 8 handcuffing can constitute excessive force.” Wall v. City of Orange, 364 F.3d 1107, 1112 9 (9th Cir. 2004). An excessive force claim based on overly tight handcuffing requires a 10 plaintiff to show that he “either suffered damage to [his] wrists as a consequence of the 11 handcuffs or [that] the plaintiff[ ] complained to the officers about the handcuffs being too 12 tight,” and the officers ignored the complaints. Liiv v. City of Coeur D’Alene, 130 Fed. 13 App’x 848, 852 (9th Cir. 2005) (emphasis omitted); see Wall, 364 F.3d at 1112 (taking 14 plaintiff’s facts as true on a motion for summary judgment, finding that the officer used 15 excessive force where the handcuffs were “extremely tight,” plaintiff requested the officer 16 loosen the handcuffs twice, and plaintiff suffered nerve damage to his wrist); LaLonde v. 17 Cty. of Riverside, 204 F.3d 947, 952, 960 (9th Cir. 2000) (finding that an issue of fact 18 existed as to excessive force claim where plaintiff presented evidence that he told the 19 officers the handcuffs were too tight, plaintiff sought medical treatment for numbness in 20 his hands, and plaintiff still experienced numbness months after the incident); Palmer v. 21 Sanderson, 9 F.3d 1433, 1434-36 (9th Cir. 1993) (finding that an issue of fact existed as to 22 excessive force claim where the officer “fastened [plaintiff’s] handcuffs so tightly around 23 his wrist that they caused [plaintiff] pain and left bruises that lasted for several weeks,” and 24 the officer “refuse[d] to loosen the handcuffs after [plaintiff] complained of the pain”); see 25 also Thompson v. Lake, 607 Fed. App’x 624, 625 (9th Cir. 2015) (plaintiff is “not required 26 to show that the handcuffs caused visible physical injury; it is enough that the handcuffs 27 caused [plaintiff] unnecessary pain”) (citations omitted)). 28 1 In this case, Plaintiff alleges that he was arrested for violating sections 273.5 and 2 245(a)(4) of the California Penal Code. Section 273.5 makes it a felony to “willfully inflict[ 3 ] corporal injury resulting in a traumatic condition upon a victim described in subdivision 4 (b),” including “the offender’s cohabitant or former cohabitant.” Cal. Pen. Code § 273.5(a), 5 (b)(2). A “traumatic condition” means “a condition of the body, such as a wound, or 6 external or internal injury, including, but not limited to, injury as a result of strangulation 7 or suffocation, whether of a minor or serious nature, caused by a physical force.” Cal. Pen. 8 Code § 273.5(d). “Strangulation” and “suffocation” include “impeding the normal 9 breathing or circulation of the blood of a person by applying pressure on the throat or neck.” 10 Id. Section 245(a)(4) makes it a crime to “commit[ ] an assault upon the person of another 11 by any means of force likely to produce great bodily injury.” Cal. Pen. Code § 245(a)(4). 12 Plaintiff alleges that he placed his former girlfriend, Contreras, in an “Arm Bar.” (ECF No. 13 39-1 ¶ 66). Plaintiff alleges that he made a “statement [to the Officers] that he put Contreras 14 in an Arm Bar . . . .” (Id. ¶ 165). Plaintiff alleges that Contreras alleged that Plaintiff 15 strangled her. Plaintiff alleges that he was “frisked, handcuffed, and detained.” (Id. ¶ 21). 16 Plaintiff alleges that Officer Dominguez double locked the handcuffs and checked for 17 tightness. Plaintiff alleges that he “complained to Officer Dominguez [ ] about the 18 handcuffs being too tight . . . .” (Id. ¶ 105). Plaintiff alleges that Officer Dominguez 19 “ignor[ed] the complaints and demand to loosen the handcuffs.” (Id.). Plaintiff alleges that 20 he had “bruises on both of his wrists [that] lasted for several weeks.” (Id. ¶ 106). 21 Taking Plaintiff’s factual allegations as true, Plaintiff fails to allege facts sufficient 22 to support an inference that the Officers lacked probable cause to arrest Plaintiff or 23 conducted an unlawful search. See People v. Covino, 100 Cal. App. 3d 660, 667-68 (1980) 24 (a trier of fact could conclude that choking is force likely to produce great bodily injury, 25 even if the victim was not seriously injured). Plaintiff fails to allege facts sufficient to 26 support an inference that Officer Martinez participated in the handcuffing or knew the 27 handcuffs were tight. See Hopkins v. Bonvicino, 573 F.3d 752, 769-70 (9th Cir. 2009) 28 (holding that either personal involvement or integral participation of the officer in the 1 alleged constitutional violation is required; liability may not be imposed based solely on 2 an officer’s presence during the incident). Plaintiff further fails to allege facts sufficient to 3 support an inference that the City has any policy or custom that caused a violation of 4 Plaintiff’s constitutional rights. However, Plaintiff alleges facts sufficient to support an 5 inference that Officer Dominguez used excessive force in handcuffing Plaintiff. See Liiv, 6 130 Fed. App’x at 852. The Court concludes that Plaintiff fails to state a claim against 7 Officer Martinez or the City under § 1983 for violation of the Fourth Amendment. The 8 Court concludes that Plaintiff sufficiently states a claim against Officer Dominguez under 9 § 1983 for excessive force due to overly tight handcuffing under the Fourth Amendment. 10 “[A] holding that a claim for excessive force could be made . . . is not the end of our 11 inquiry.” Ward v. Gates, 52 F. App’x 341, 345 (9th Cir. 2002). “Qualified immunity shields 12 federal and state officials from money damages unless a plaintiff pleads facts showing (1) 13 that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly 14 established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 15 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “An officer ‘cannot be 16 said to have violated a clearly established right unless the right’s contours were sufficiently 17 definite that any reasonable official in [his] shoes would have understood that he was 18 violating it,’ . . . meaning that ‘existing precedent . . . placed the statutory or constitutional 19 question beyond debate.’” City & Cty. of San Francisco. v. Sheehan, 135 S. Ct. 1765, 1774 20 (2015) (first and third alterations in original) (quoting Ashcroft, 563 U.S. at 741). “This 21 exacting standard ‘gives government officials breathing room to make reasonable but 22 mistaken judgments’ by ‘protect[ing] all but the plainly incompetent or those who 23 knowingly violate the law.’” Id. (alteration in original) (quoting Ashcroft, 563 U.S. at 743). 24 “[T]he salient question . . . is whether the state of the law at the time of an incident provided 25 fair warning to the defendants that their alleged [conduct] was unconstitutional.” Tolan v. 26 Cotton, 572 U.S. 650, 656 (2014) (alterations in original) (quoting Hope v. Pelzer, 536 27 U.S. 730, 741 (2002)). 28 1 In this case, the Court has determined that Plaintiff has plausibly alleged that Officer 2 Dominguez violated Plaintiff’s Fourth Amendment right to be free from the use of 3 excessive force due to overly tight handcuffing. The Court of Appeals for the Ninth Circuit 4 has recognized that overly tight handcuffing may constitute excessive force where the 5 handcuffs caused demonstrable injury or unnecessary pain, or where officers ignored or 6 refused requests to loosen the handcuffs once alerted that the handcuffs were too tight. See 7 Wall, 364 F.3d at 1112; LaLonde, 204 F.3d at 952, 960; Palmer, 9 F.3d at 1434-36. At the 8 time the incident occurred on June 26, 2018, Plaintiff’s right to be free from excessive force 9 in the form of overly tight handcuffing was clearly established. Taking Plaintiff’s factual 10 allegations as true, Plaintiff complained to Officer Dominguez that the handcuffs were 11 tight, Officer Dominguez ignored the complaints, and Plaintiff suffered bruises on his 12 wrists that lasted for several weeks. The Court cannot conclude that Officer Dominguez is 13 entitled to qualified immunity at this stage in the litigation. See Thompson, 607 F. App’x 14 at 625-26 (denying qualified immunity where tight handcuffs caused plaintiff pain and he 15 requested the police loosen them); Wall, 364 F.3d at 1112 (the officer “violated a clearly 16 established constitutional right to be free from excessive force” where the officer refused 17 to loosen handcuffs at plaintiff’s request, and plaintiff suffered nerve damage to his wrists); 18 Meredith v. Erath, 342 F.3d 1057, 1063 (9th Cir. 2003) (denying qualified immunity where 19 plaintiff was in overly tight handcuffs for thirty minutes, causing pain and bruising); 20 Palmer, 9 F.3d at 1436 (denying qualified immunity where officers refused to loosen 21 overly tight handcuffs and plaintiff suffered pain and bruising); c.f. Ward v. Gates, 52 F. 22 App’x 341, 346 (9th Cir. 2002) (holding that the officers were entitled to qualified 23 immunity where plaintiff committed a serious felony, “there was no indication that the 24 officers were aware that the handcuffs were causing [plaintiff] pain,” and plaintiff “was 25 bruised for a couple of weeks, but not seriously injured”). 26 2. Fifth Amendment 27 The Self-Incrimination Clause of the Fifth Amendment provides that no person 28 “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. 1 amend. V. When a person is questioned by the government, if a truthful answer might 2 incriminate him in a future criminal proceeding, the Self-Incrimination Clause provides 3 him with the privilege to refuse to answer. See Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). 4 Ordinarily, if the person does not assert the privilege and answers the question, his answer 5 is considered voluntary, not “compelled.” Minnesota v. Murphy, 465 U.S. 420, 429 (1984). 6 The privilege against self-incrimination requires that a person be advised of certain rights 7 when “in custody” and “subjected to interrogation.” Miranda, 384 U.S. at 467-68 (1966). 8 In this case, Plaintiff alleges that he called 911. Plaintiff alleges that Officers 9 Dominguez and Martinez arrived at Plaintiff’s residence and took separate statements from 10 Plaintiff and Contreras. Plaintiff alleges that the Officers asked Plaintiff, “[W]hat happened 11 that night?” (ECF No. 39-1 ¶ 114). Plaintiff alleges that Officer Dominguez’s “tone and 12 posture” “led Plaintiff to believe that [Officer Dominguez] was friendly and was going to 13 escort Contreras out of Plaintiff[’]s residence.” (Id. ¶ 117). Plaintiff alleges that he made a 14 “statement that he put Contreras in an Arm Bar . . . .” (Id. ¶ 165). Plaintiff alleges that he 15 was arrested, transported to a detention facility, and read his Miranda rights after his intake 16 paperwork was complete. Taking Plaintiff’s factual allegations as true, Plaintiff fails to 17 allege facts sufficient to support an inference that Plaintiff’s statement to the Officers was 18 coerced rather than voluntary. Plaintiff fails to allege facts sufficient to support an inference 19 that Plaintiff was in custody or being interrogated when he told the Officers that he put 20 Contreras in an arm bar. The Court concludes that Plaintiff fails to state a § 1983 claim for 21 violation of the Fifth Amendment. 22 3. Eighth Amendment 23 A § 1983 claim based on a violation of the Eighth Amendment may be brought only 24 by a prisoner. See Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1246 n.5 (9th Cir. 2016) 25 (“Eighth Amendment protections apply only once a prisoner has been convicted of a 26 crime.”). At the time of the alleged actions that form the basis of Plaintiff’s § 1983 claim, 27 Plaintiff had not been convicted of a crime and was not a prisoner. The Court concludes 28 that Plaintiff fails to state a § 1983 claim for violation of the Eighth Amendment. 1 4. Fourteenth Amendment 2 The Due Process Clause of the Fourteenth Amendment provides that no state shall 3 “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. 4 amend. XIV, § 1. To state a claim for a due process violation, the plaintiff must allege that 5 the defendant acted with deliberate indifference to the plaintiff’s constitutional rights. See 6 Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016). A government actor 7 may be liable under the Due Process Clause for continuing to detain a detainee after he is 8 entitled to release. See Lee, 250 F.3d at 683-84. The Equal Protection Clause of the 9 Fourteenth Amendment provides that no state shall “deny to any person within its 10 jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “To state a 11 claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the 12 Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or 13 purpose to discriminate against the plaintiff based upon membership in a protected class.” 14 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 15 In this case, Plaintiff alleges that the Officers “detained Plaintiff for an unreasonable 16 amount of time.” (ECF No. 39-1 ¶ 72). Plaintiff alleges that he is Native American.3 17 Plaintiff alleges that he suffers from the following “disabilities:” “American, Male, 18 disabled veteran, single parent, under the age of 40, Homeowner in Otay Ranch, 19 California.” (Id. ¶ 257). Plaintiff alleges that Officer Dominguez has “ill-will toward 20 copper colored individuals.” (Id. ¶ 110). Plaintiff alleges that “not only was his race a 21 motivating factor for the arrest,” but Plaintiff’s “creed, color, gender, disability and 22 national origin played a significant role,” because Officer Dominguez “wasn’t going to 23 permit a disabled man to place another person in an Arm Bar, regardless of Plaintiff’s right 24 to use Self-Defense.” (Id. ¶ 78). Plaintiff alleges that Contreras was not arrested and was 25 given domestic violence resources, even though she was the initial aggressor. Taking 26 27 28 1 Plaintiff’s factual allegations as true, Plaintiff fails to allege facts sufficient to support an 2 inference that Plaintiff was detained for longer than necessary after he was entitled to 3 release and that the Officers acted with deliberate indifference to Plaintiff’s constitutional 4 rights. See Lee, 250 F.3d at 683-84. Plaintiff fails to allege facts sufficient to support an 5 inference that either Officer acted with an intent or purpose to discriminate against Plaintiff 6 based on his membership in any protected class. The Court concludes that Plaintiff fails to 7 state a § 1983 claim for violation of the Fourteenth Amendment. 8 B. Unruh Act 9 The Unruh Act provides: 10 All persons within the jurisdiction of [California] are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, 11 medical condition, genetic information, marital status, sexual orientation, 12 citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all 13 business establishments of every kind whatsoever. 14 Cal. Civ. Code § 51(b). The Unruh Act creates a private right of action against anyone who 15 “denies, aids or incites a denial, or makes any discrimination or distinction contrary to 16 Section 51.” Cal. Civ. Code § 52(a). To prevail on an Unruh Act claim, a plaintiff must 17 “prove intentional discrimination.” Cohn v. Corinthian Colls., Inc., 169 Cal. App. 4th 523, 18 526 (2008). 19 The Court has concluded that Plaintiff’s allegations that Officers Dominguez and 20 Martinez discriminated against Plaintiff are conclusory. The Court concludes that Plaintiff 21 fails to state a claim for violation of the Unruh Act. 22 The claim against Officer Martinez and the City for violation of § 1983 and the 23 Unruh Act is dismissed. The claim against Officer Dominguez for violation of § 1983 and 24 the Unruh Act is dismissed except to the extent that Plaintiff alleges a claim against Officer 25 Dominguez under § 1983 for violation of Plaintiff’s Fourth Amendment right to be free 26 from excessive force due to overly tight handcuffing. 27 /// 28 1 VII. SECOND AND FOURTH CAUSES OF ACTION - FALSE IMPRISONMENT 2 Plaintiff brings the second and fourth causes of action against all Defendants for 3 false imprisonment. Defendants contend that Plaintiff fails to state a false imprisonment 4 claim because Plaintiff was lawfully arrested. Plaintiff contends that he sufficiently states 5 a claim for false imprisonment because his arrest was unlawful. 6 To state a claim for false imprisonment under California law, a plaintiff must show: 7 “(1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, 8 and (3) for an appreciable period of time, however brief.” Easton v. Sutter Coast Hosp., 80 9 Cal. App. 4th 485, 496 (2000) (citing City of Newport Beach v. Sasse, 9 Cal. App. 3d 803, 10 810 (1970)). “[F]alse arrest is [ ] one way of committing false imprisonment.” Watts v. Cty. 11 of Sacramento, 256 F.3d 886, 891 (9th Cir. 2001) (citation omitted). “A cause of action for 12 false imprisonment based on unlawful arrest will lie where there was an arrest without 13 process followed by imprisonment.” Id. (citing Sasse, 9 Cal. App. 3d 803; Dragna v. White, 14 45 Cal. 2d 469 (1955)). A police officer who makes an arrest without a warrant and without 15 justification may be liable for false imprisonment. See Miller v. Glass, 44 Cal. 2d 359, 361 16 (1955). 17 In this case, Plaintiff’s false imprisonment claims are premised on the same facts as 18 Plaintiff’s claim for unlawful arrest under the Fourth Amendment. The Court has 19 concluded that Plaintiff fails to state facts sufficient to support an inference that the Officers 20 lacked probable cause to arrest Plaintiff. Plaintiff fails to allege facts sufficient to support 21 an inference that his confinement was without lawful privilege. See Easton, 80 Cal. App. 22 4th at 496. The Court concludes that Plaintiff fails to state a claim false imprisonment. The 23 false imprisonment claims are dismissed. 24 VIII. THIRD, SIXTH, SEVENTH, AND NINTH CAUSES OF ACTION - NEGLIGENCE 25 26 Plaintiff brings claims against all Defendants for negligence; negligent training, 27 directing, supervising, managing, and controlling; and negligent infliction of emotional 28 distress. Defendants contend that Plaintiff fails to state facts that support an inference that 1 the Officers were negligent. Defendants contend that the Officers acted reasonably when 2 apprehending Plaintiff. Defendants contend that Plaintiff fails to identify a statutory basis 3 for a negligence claim against the City. Plaintiff contends that he plausibly states a 4 negligence claim. 5 To state a claim for negligence, a plaintiff must show that 1) defendants owed a duty 6 of care; 2) defendants breached that duty; and 3) the breach was a substantial factor in 7 causing plaintiff harm. See Ladd v. Cty. of San Mateo, 12 Cal. 4th 913, 917 (1996). In 8 California, there is no separate tort for negligent infliction of emotional distress. The 9 regular rules of negligence apply. See Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 10 965, 984-85 (1993). Negligence in training, hiring, and supervision is also analyzed under 11 the general negligence standard. See Montague v. AMN Healthcare, Inc., 223 Cal. App. 12 4th 1515, 1524 (2014), as modified (June 11, 2014). Police officers have a “duty to use 13 reasonable care in apprehending a suspect.” Munoz v. City of Union City, 120 Cal. App. 14 4th 1077, 1101 (2004), disapproved of on other grounds by Hayes v. Cty. of San Diego, 57 15 Cal. 4th 622 (2013). Police officers owe “a duty to use reasonable care” in deciding whether 16 to use and in fact using force. Id. If a police officer fails to meet this duty, he or she may 17 be held liable for negligence. See id. The duty to use reasonable care under California law 18 is broader than the reasonableness standard under the Fourth Amendment. See Hayes, 57 19 Cal. 4th at 639. 20 Tort liability against the City “is dependent on the existence of an authorizing statute 21 or ‘enactment.’” Searcy v. Hemet Unified Sch. Dist., 177 Cal. App. 3d 792, 802 (1986) 22 (citations omitted). Section 815(a) of the California Government Code provides that, 23 “[e]xcept as otherwise provided by statute . . . [a] public entity is not liable for an injury, 24 whether such injury arises out of an act or omission of the public entity or a public 25 employee or any other person.” Cal. Gov’t Code § 815(a); see Cowing v. City of Torrance, 26 60 Cal. App. 3d 757, 761 (1976) (“There is no common law governmental tort liability in 27 California; and except as otherwise provided by statute, there is no liability on the part of 28 a public entity for any act or omission of itself, a public employee, or any other person.”). 1 “Since the duty of a governmental agency can only be created by statute or ‘enactment,’ 2 the statute or ‘enactment’ claimed to establish the duty must at the very least be identified” 3 in the complaint. Searcy, 177 Cal. App. 3d at 802. 4 In this case, Plaintiff’s negligence claim against the Officers is premised on the same 5 facts as the § 1983 claim. Taking Plaintiff’s factual allegations as true, Plaintiffs fails to 6 state facts sufficient to support an inference that any of Officer Martinez’s actions were 7 unreasonable. The Court concludes that Plaintiff fails to state a negligence claim against 8 Officer Martinez. The Court has concluded that Plaintiff sufficiently states a claim against 9 Officer Dominguez for excessive force due to overly tight handcuffing under the “more 10 narrow[ ]” Fourth Amendment reasonableness standard. Hayes, 57 Cal. 4th at 639. 11 Accordingly, the Court concludes that Plaintiff sufficiently states a negligence claim 12 against Officer Dominguez. 13 Plaintiff’s negligence claim against the City alleges direct and vicarious liability. 14 Plaintiff alleges that the Officers were improperly trained on identifying the dominant 15 aggressor, handcuffing, and Miranda warnings. Plaintiff alleges that the City is vicariously 16 liable for the Officers’ negligence. Plaintiff identifies section 815.2, 815.6, 820(a), and 17 844.6(d) of the California Government Code and sections 11116.6 and 11117 of the 18 California Penal Code as the statutory bases for the claim against the City. None of the 19 statutes identified by Plaintiff provide a basis for direct negligence liability against the City. 20 However, section 815.2 of the California Government Code “makes a public entity 21 vicariously liable for its employee’s negligent acts or omissions within the scope of 22 employment.” Eastburn v. Reg’l Fire Prot. Auth., 31 Cal. 4th 1175, 1180 (2003). “Since 23 the enactment of the California Tort Claims Act in 1963 (§ 810 et seq.), a governmental 24 entity can be held vicariously liable when a police officer acting in the course and scope of 25 employment uses excessive force or engages in assaultive conduct.” Mary M v. City of Los 26 Angeles, 54 Cal. 3d 202, 215 (1991). For the doctrine of respondeat superior to apply, the 27 employee’s tortious conduct must be committed “within the scope of employment.” Id. at 28 209. The Court has determined that Plaintiff has sufficiently stated a negligence claim 1 against Officer Dominguez. Plaintiff alleges that Officer Dominguez’s actions were 2 committed during Plaintiff’s arrest, within the scope of Officer Dominguez’s employment 3 as a CVPD Officer. Taking Plaintiff’s factual allegations as true, Plaintiff sufficiently states 4 a negligence claim against the City under section 815.2. 5 The negligence claims against Officer Martinez are dismissed. The sixth, seventh, 6 and ninth causes of action for negligence against Officer Dominguez and the City are 7 dismissed as duplicative of the third cause of action for negligence. 8 IX. FIFTH CAUSE OF ACTION - ASSAULT AND BATTERY 9 Plaintiff brings the fifth cause of action against all Defendants for assault and battery. 10 Defendants contend that Plaintiff fails to state a claim against the Officers for assault and 11 battery. Defendants contend that Plaintiff fails to state facts sufficient to support an 12 inference that either Officer used unreasonable force. Defendants contend that Plaintiff 13 fails to identify a statutory basis for an assault and battery claim against the City. Plaintiff 14 contends that he sufficiently states a claim for assault and battery. 15 To establish a claim of battery against a police officer, the plaintiff must show that 16 1) the officer intentionally touched the plaintiff; 2) the officer used unreasonable force; 3) 17 the plaintiff did not consent to that use of force; 4) the plaintiff was harmed; and 5) the use 18 of unreasonable force was a substantial factor in causing the plaintiff’s harm. See California 19 Civil Jury Instructions (2017) (“CACI”) No. 1305; see also Edson v. City of Anaheim, 63 20 Cal. App. 4th 1269, 1272 (1998) (holding that where a police officer is a defendant, a 21 plaintiff must prove unreasonable force as an additional element of a traditional battery 22 claim). 23 To establish a claim of assault the plaintiff must show: 24 (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff 25 reasonably believed she was about to be touched in a harmful or offensive 26 manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff 27 was harmed; and (5) defendant’s conduct was a substantial factor in causing 28 plaintiff’s harm. 1 So v. Shin, 212 Cal. App. 4th 652, 668-69 (2013) (citing CACI No. 1301). The use of 2 unreasonable force is an additional element of an assault claim against a police officer. See 3 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (holding 4 that district court properly granted summary judgment on assault claim where plaintiff 5 failed to show officers used unreasonable force); see also Pryor v. City of Clearlake, 877 6 F. Supp. 2d 929, 953 (N.D. Cal. 2012) (the plaintiff must show the defendant “threatened 7 him with the use of unreasonable force”). 8 In this case, Plaintiff’s assault and battery claim is premised on the same facts as the 9 § 1983 claim. The Court has concluded that Plaintiff sufficiently states an excessive force 10 claim against Officer Dominguez based on overly tight handcuffing. Accordingly, the 11 Court concludes that Plaintiff sufficiently states an assault and battery claim against Officer 12 Dominguez based on overly tight handcuffing. See Edson v. City of Anaheim, 63 Cal. App. 13 4th 1269, 1273 (1998) (“A peace officer who uses unreasonable or excessive force in 14 making a lawful arrest or detention commits a battery upon the person being arrested or 15 detained as to such excessive force.”). Plaintiff fails to state facts sufficient to support an 16 inference that Officer Martinez used unreasonable force or threatened Plaintiff with the use 17 of unreasonable force. Plaintiff fails to identify a statutory basis for the claim against the 18 City as required by section 815(a). The Court concludes that Plaintiff fails to state a claim 19 for assault or battery against Officer Martinez and the City. The assault and battery claim 20 against Officer Martinez and the City is dismissed. 21 X. EIGHTH CAUSE OF ACTION - INTENTIONAL INFLICTION OF 22 EMOTIONAL DISTRESS 23 Plaintiff brings the eighth cause of action against all Defendants for intentional 24 infliction of emotional distress. Defendants contend that that Plaintiff fails to state facts 25 that rise to the level of outrageous conduct. Plaintiff contends that he plausibly states a 26 claim for intentional infliction of emotional distress. 27 28 1 To establish a claim for intentional infliction of emotional distress, a plaintiff must 2 show: 3 (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; 4 (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) 5 actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. 6 7 Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009) (citation omitted). A defendant’s conduct 8 is “outrageous” when it is “so extreme as to exceed all abounds of that usually tolerated in 9 a civilized community.” Id. 10 In this case, Plaintiff alleges that Officer Martinez placed his hand on his cartridge 11 holder, and the Officers detained Plaintiff even though he was the “reporting party.” (ECF 12 No. 39-1 ¶ 66). Plaintiff alleges that the Officers used an unreasonable amount of force in 13 handcuffing Plaintiff. Plaintiff alleges that as a result of the Officers’ actions, Plaintiff 14 suffered bruises on his wrists, aggravation of his PTSD and hypertension, and unwelcome 15 distress. Taking Plaintiffs’ allegations as true, Plaintiff fails to allege facts sufficient to 16 support an inference that any Defendant’s conduct was “so extreme as to exceed all 17 abounds of that usually tolerated in a civilized community.” Id. The Court concludes that 18 Plaintiff fails to state a claim for intentional infliction of emotional distress. The intentional 19 infliction of emotional distress claim is dismissed. See Percival v. Cty. of Alameda, No. 20 17-cv-04065-WHO, 2017 U.S. Dist. LEXIS 169927, at *18 (N.D. Cal. Oct. 13, 2017) 21 (actions such as grabbing, pushing, and repeatedly showing pepper spray are not extreme 22 and outrageous but are “reasonable in the commission of the duty to make arrests where 23 probable cause exists”). 24 XI. TENTH CAUSE OF ACTION - DEFAMATION/SLANDER/LIBEL 25 Plaintiff brings the tenth cause of action against all Defendants for defamation, 26 slander, and libel. Defendants contend that they are not liable for defamation because police 27 reports are privileged communications under section 47 of the California Civil Code. 28 Defendants contend that Plaintiff fails to allege facts sufficient to support an inference that 1 the police report is unprivileged and false and that Defendants published the report. 2 Plaintiff contends that he plausibly states a claim for defamation, slander, and libel. 3 “The tort of defamation involves (a) a publication that is (b) false, (c) defamatory, 4 and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special 5 damage.” Taus v. Loftus, 40 Cal. 4th 683, 720 (2007). Defamation is effected by either libel 6 or slander. See Cal. Civ. Code § 44. Libel is a “false and unprivileged writing . . . or other 7 fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or 8 obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure 9 him in his occupation.” Cal. Civ. Code § 45 (emphasis added). Slander is a false, 10 unprivileged oral publication. See Cal. Civ. Code § 46. 11 In this case, Plaintiff alleges that Defendants are liable for defamation based on the 12 police report, which contains false statements and caused Plaintiff to lose a job opportunity. 13 A police report is a privileged communication under section 47 of the California Civil 14 Code. See Cal. Civ. Code § 47(a) (barring tort actions for a publication that is made “[i]n 15 the proper discharge of an official duty”); subdivision(b) (barring a tort actions for 16 communications made in a “proceeding authorized by law”); see also Nash v. Lewis, 365 17 Fed. App’x 48, 53 (9th Cir. 2010) (holding that “[p]reparation of a police report is an 18 official duty of a police officer”). Taking Plaintiff’s factual allegations as true, Plaintiff 19 fails to state facts sufficient to support an inference that Defendants “published” an 20 “unprivileged” false statement. Taus, 40 Cal. 4th at 720. The Court concludes that Plaintiff 21 fails to state a claim for defamation. Plaintiff’s defamation claim is dismissed. 22 XII. ELEVENTH CAUSE OF ACTION - INTENTIONAL DISCRIMINATION 23 Plaintiff brings the eleventh cause of action against all Defendants for intentional 24 discrimination in violation of the Unruh Act; Title VII of the Civil Rights Act of 1964, 42 25 U.S.C. § 2000e-2(a); and 42 U.S.C. § 1981. Defendants contend that that “Title VII . . . 26 applies in employment relationships, which is not the case at bar.” (ECF No. 46-1 at 20). 27 Defendants contend that 42 U.S.C. § 1981 “applies only in situations where there is 28 discrimination in the making and enforcing of contracts.” (Id.). Defendants contend that 1 Plaintiff fails to state facts sufficient to support an inference that Defendants acted with an 2 intent or purpose to discriminate against Plaintiff based upon a protected classification. 3 Plaintiff contends that he Plaintiff contends that he plausibly states a claim for intentional 4 discrimination. 5 “Title VII prohibits discrimination in employment on the grounds of ‘race, 6 color, religion, sex, or national origin.’” EEOC v. Peabody W. Coal Co., 773 F.3d 977, 7 983-84 (9th Cir. 2014) (quoting 42 U.S.C. § 2000e-2(a)). 42 U.S.C. § 1981 “prohibits racial 8 discrimination in the making and enforcement of contracts . . . .” Rivers v. Roadway 9 Express, 511 U.S. 298, 302 (1994). Plaintiff does not allege that he was discriminated 10 against in his employment or in the making or enforcement of any contract. The Court 11 concludes that Plaintiff fails to state a claim for violation of Title VII or § 1981. The Court 12 has concluded that Plaintiff fails to state a claim for violation of the Unruh Act. The 13 intentional discrimination claim is dismissed. 14 XIII. TWELFTH CAUSE OF ACTION - FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT 15 16 Plaintiff brings the twelfth cause of action against all Defendants for failure to 17 prevent discrimination and harassment in violation of section 12940(k) of the California 18 Government Code. Defendants contend that section 12940(k) makes it unlawful for 19 employers to prevent discrimination and harassment, and Plaintiff is not employed by 20 Defendants. Plaintiff contends that plausibly states a claim for failure to prevent 21 discrimination and harassment. 22 Section 12940 of the California Government Code prohibits employment 23 discrimination and makes it unlawful “[f]or an employer, labor organization, employment 24 agency, apprenticeship training program, or any training program leading to employment, 25 to fail to take all reasonable steps necessary to prevent discrimination and harassment from 26 occurring.” Cal. Gov’t Code § 12940(k). Plaintiff does not allege that he had any 27 employment relationship with Defendants. The Court concludes that Plaintiff fails to state 28 1 a claim for violation of section 12940(k). The claim for failure to prevent discrimination 2 and harassment is dismissed. 3 XIV. THIRTEENTH CAUSE OF ACTION - SELECTIVE AND VINDICTIVE CRIMINAL PROCESSING 4 5 Plaintiff brings the thirteenth cause of action against all Defendants for selective and 6 vindictive criminal processing. Defendants contend that the claim is conclusory, devoid of 7 any statutory basis, and mirrors the discriminations claims. Plaintiff contends that he 8 plausibly states a claim for selective and vindictive criminal processing. 9 Selective prosecution occurs when a plaintiff demonstrates that “others are generally 10 not prosecuted for the same conduct,” and “[t]he decision to prosecute this defendant was 11 based upon impermissible grounds such as race, religion or the exercise of constitutional 12 rights.” United States v. Wilson, 639 F.2d 500, 503 (9th Cir. 1981). “Vindictive prosecution 13 arises only where the government increases the severity of alleged charges in response to 14 a defendant’s exercise of constitutional rights.” Id. at 502. “Little substantive difference 15 can be detected between selective prosecution and vindictive prosecution.” Id. 16 In this case, Plaintiff was never charged with a crime or prosecuted. The Court 17 concludes that Plaintiff fails to state a claim for selective and vindictive criminal 18 processing. The claim for selective and vindictive criminal processing is dismissed. 19 XV. STRIKE 20 Defendants request that the Court strike Plaintiff’s request for punitive damages and 21 numerous paragraphs of the SAC. Defendants contend that Plaintiff’s request for punitive 22 damages is impertinent and scandalous under Rule 12(f) of the Federal Rules of Civil 23 Procedure because Plaintiff fails to allege facts that Defendants’ conduct rises to reckless 24 or callous indifference to Plaintiff’s rights. Defendants contend that the Court should strike 25 paragraphs 19-20, 22-24, 31-33, 36, 39, 44, 45, 48, 49, 51, 57, 67, 77, 85, 89, 92, 99, 111, 26 116, 119, 123, 124, 127, 130, 159, 167, 191, 192, 216, 217, 241, 245, 280-283, and IV(a) 27 of the conclusion because the paragraphs are not factual allegations, relate to the conduct 28 1 of non-party Contreras, relate to Defendants’ previous motions to dismiss, or seek 2 unsupported damages. 3 Under Rule 12(f) of the Federal Rule of Civil Procedure, “[t]he court may strike 4 from a pleading an insufficient defense or any redundant, immaterial, impertinent, or 5 scandalous matter.” Fed. R. Civ. P. 12(f). “Redundant” matter is needlessly repetitive. Cal. 6 Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. 7 Cal. 2002). “Immaterial” matter “has no essential or important relationship to the claim for 8 relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th 9 Cir. 1993) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and 10 Procedure § 1382, at 706-07 (1990)), rev’d on other grounds, 510 U.S. 517 (1994). 11 “‘Impertinent’ matter consists of statements that do not pertain, and are not necessary, to 12 the issues in question.” Id. at 711. Scandalous matter “cast[s] a cruelly derogatory light on 13 a party or other person.” In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 14 (C.D. Cal. 2000). Motions to strike are generally disfavored. See Petrie v. Elec. Game 15 Card, Inc., 761 F.3d 959, 965 (9th Cir. 2014). Motions to strike should only be granted 16 when it is “clear that [the allegations] can have no possible bearing on the subject matter 17 of the litigation.” Ill. Nat’l Ins. Co. v. Nordic PCL Constr., Inc., 870 F. Supp. 2d 1015, 18 1039 (D. Haw. 2012). 19 “Rule 12(f) does not authorize district courts to strike claims for damages on the 20 ground that such claims are precluded as a matter of law.” Whittlestone, Inc. v. Handi-Craft 21 Co., 618 F.3d 970, 975 (9th Cir. 2010), as corrected (Aug. 26, 2010). Rule 12(f) is “neither 22 an authorized nor a proper way to procure the dismissal of all or a part of a complaint.” Id. 23 (citing Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir. 1977)). Defendants’ request 24 that the Court strike Plaintiffs’ request for punitive damages is denied. 25 Paragraphs 19-20, 22-24, 31-33, 36, 39, 44, 45, 48, 49, 51, 57, 67, 89, 92, 99, 111, 26 116, 119, 123, 124, 191, 192, and 241 of the SAC allege facts and legal theories related to 27 the incident leading to Plaintiff’s arrest, the conduct of the Officers, and City policies. The 28 Court cannot conclude that these allegations have no possible bearing on any of Plaintiff’s 1 claims. See Ill. Nat’l Ins. Co., 870 F. Supp. 2d at 1039. Paragraphs 130, 216, 217, and 280- 2 83 fall within causes of action that have been dismissed. Defendants’ request that the Court 3 strike paragraphs 19-20, 22-24, 31-33, 36, 39, 44, 45, 48, 49, 51, 57, 67, 85, 89, 92, 99, 4 111, 116, 119, 123, 124, 130, 191, 192, 216, 217, 241, and 280-283 is denied. 5 Paragraphs 77, 127, 159, 167, 245, and IV(a) of the conclusion of the SAC include 6 allegations that the Court erred in ruling on Defendants’ previous Motion to Dismiss and 7 arguments relating to the current Motion to Dismiss. These allegations are irrelevant and 8 impertinent under Rule 12(f). Defendants’ request that the Court strike paragraphs 77, 127, 9 159, 167, 245, and IV(a) of the conclusion is granted. 10 Defendants further object to and request that the Court strike letters, emails, pictures, 11 and medical records that Plaintiff attaches to the SAC as Exhibits 3, 4, 6, 8, and 9. (ECF 12 No. 46-3). Defendants contend that Plaintiff “offers no legal authority that the documents 13 [are] proper to attach to a pleading or that the document[s] [are] relevant . . . .” (Id. at 2). 14 Defendants contend that Plaintiff fails to authenticate the documents, and the documents 15 contain inadmissible hearsay. However, in considering evidence on a motion to dismiss, 16 the court looks not at whether the evidence is currently presented in an admissible form, 17 but instead whether it “could be presented in an admissible form at trial.” Fonseca v. Sysco 18 Food Servs. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004) (citations omitted). Defendants 19 fail to articulate why the content of the exhibits could not be properly authenticated and 20 admitted at trial. Defendants have not met their burden to demonstrate that the Court should 21 strike the exhibits at this stage in the litigation. Defendants’ request that the Court strike 22 Exhibits 3, 4, 6, 8, and 9 is denied. 23 XVI. CONCLUSION 24 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Second 25 Amended Complaint, or in the Alternative to Strike Portions Thereof (ECF No. 46) is 26 granted in part and denied in part. The Motion to Dismiss is denied as to 1) the first cause 27 of action under § 1983 against Officer Dominguez based on excessive force due to overly 28 tight handcuffing; 2) the third cause of action for negligence against Officer Dominguez 1 || based on unreasonable force due to overly tight handcuffing and against the City based on 2 || vicarious liability; 3) the fifth cause of action for assault and battery against Officer 3 || Dominguez based on unreasonable force due to overly tight handcuffing; and 4) the 4 requests to strike paragraphs 19-20, 22-24, 31-33, 36, 39, 44, 45, 48, 49, 51, 57, 67, 85, 89, 5 99, 111, 116, 119, 123, 124, 130, 191, 192, 216, 217, 241, and 280-283 and Exhibits 3, 6 6, 8, and 9 to the SAC; and is otherwise granted. 7 No later than thirty (30) days from the date of this Order, Plaintiff may file any 8 motion for leave to amend pursuant to Civil Local Rules 7.1 and 15.1(c). 9 10 11 |} Dated: September 28, 2020 Nitta Ze. A a 12 Hon, William Q. Hayes 13 United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28