Opinion
No. 2:16-cv-00392-JAM-EFB
07-13-2016
JESUS BETANZO BASILIO, Plaintiff, v. CITY OF FAIRFIELD, CITY OF FAIRFIELD POLICE DEPARTMENT, WALT TIBBET, DOES 1-100, Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Plaintiff Jesus Betanzo Basilio ("Plaintiff") sued the City of Fairfield ("the City"), the Fairfield Police Department ("FPD"), and FPD Chief of Police Walt Tibbet ("Tibbet") (collectively "Defendants") for civil rights and state law violations arising out of an interaction between Plaintiff and FPD officers (Doc. #1). Defendants move to dismiss Plaintiff's complaint (Doc. #9). Plaintiff opposes the motion (Doc. #14).
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for June 14, 2016. --------
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
The Court takes the facts alleged by Plaintiff as true for purposes of this motion. In February 2014, FPD officers arrested Plaintiff at his residence. Compl. ¶ 11. Plaintiff is a Mexican-American male and was a minor at the time of the arrest. Id. The officers approached Plaintiff and yelled at him to get on the floor. Id. ¶ 12. Plaintiff was unarmed and complied with the officers' requests. Id. The officers then slammed their knees into Plaintiff's neck, shoulder, and face. Id. Some of the officers kicked Plaintiff in the temple. Id. Plaintiff was not resisting arrest while the officers were kicking him. Id.
One officer searched Plaintiff and forcefully pulled on Plaintiff's testicles. Id. ¶ 15. The officer then placed Plaintiff in the back of his patrol car. Id. While in the patrol car, Plaintiff told officers that he was tired, did not feel well, and that his head hurt. Id. ¶ 19. Plaintiff fainted in the back of the police car. Id. ¶ 20.
When Plaintiff arrived at the police station, officers took him into an interrogation room. Id. ¶ 21. Plaintiff told police officers that we was in pain and that he needed aspirin and to be taken to the hospital. Id. ¶ 22. The officers did not take Plaintiff to the hospital and left him in the room for two hours. Id. Plaintiff fainted in the interrogation room. Id.
At some point, the officers came back into the room asked Plaintiff about a suspect in a shooting. Id. ¶ 23. Plaintiff told the officers he "had no gang relations." Id. Plaintiff was at the police station for five hours. Id. ¶ 26. Fairfield police officers then transported him to a hospital. Id.
Plaintiff sued Defendants in February 2016, alleging seven causes of action: (1) excessive force pursuant to 42 U.S.C. § 1983 ("§ 1983"), (2) denial of medical care pursuant to § 1983, (3) violation of the Bane Act, (4) battery, (5) negligence, (6) false imprisonment, and (7) false arrest. Id. at 8-17. Defendants move to dismiss each of Plaintiff's claims, except for the battery claim. Motion to Dismiss ("MTD") at 1-2.
II. OPINION
A. First Cause of Action: Excessive Force
Plaintiff brings his first cause of action for excessive force under the Fourth and Fourteenth Amendments. Compl. at 8. Defendants argue that Plaintiff's claim must be dismissed to the extent that it is brought under the Fourteenth Amendment because an excessive force claim is limited to being brought under the Fourth Amendment. MTD at 4. Defendants are correct. The Supreme Court has explicitly held that:
all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims./// Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). Plaintiff's excessive force claim brought under the Fourteenth Amendment is dismissed. The excessive force claim remains to the extent it is brought under the Fourth Amendment.
1. § 1983 Excessive Force Claim Against the City
a. Plaintiff Fails to Allege a Policy or Custom That Caused His Constitutional Injury
Defendants argue that the City cannot be liable under § 1983 because Plaintiff fails to sufficiently allege Monell liability. MTD at 4-5. A local government entity may be liable under § 1983 when the alleged constitutional injury was caused by the entity's "policy or custom." Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). A Plaintiff can successfully allege a policy or custom of a public entity by showing: (1) that "a longstanding practice or custom which constitutes the 'standard operating procedure' of the local government entity;" (2) "the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision;" or (3) "an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate." Newman v. San Joaquin Delta Cmty. Coll. Dist., 814 F. Supp. 2d 967, 977 (E.D. Cal. 2011) (quoting Rosenbaum v. City & Cty. of S.F., 484 F.3d 1142, 1155 (9th Cir. 2007)). To "sufficiently state a claim under Monell, [a] plaintiff must allege facts establishing a policy, it is not enough simply to state that there is a policy." Smith v. Stanislaus, 2012 WL 253241, at *4 (E.D. Cal. Jan. 26, 2012) (emphasis added).
Defendants argue that Plaintiff fails to allege a "longstanding practice or custom" because "Plaintiff's factual allegations relate only to his particular incident, and there are no facts showing a practice or custom beyond the subject incident." MTD at 6. Defendants are correct. In his complaint, Plaintiff alleges that the City "maintained or permitted one or more of the following official policies, customs, or practices," and then lists several different practices in generic terms. Compl. ¶ 10. But Plaintiff does not provide facts to support these generic allegations. The facts in Plaintiff's complaint relate only to one encounter with FPD. There are no facts supporting the existence of any "longstanding practice" which constitutes the "standard operating procedure" of the FPD. See Newman, 814 F. Supp. 2d at 977.
Defendants also argue that Plaintiff fails to allege a ratification claim. MTD at 6. "To prove Monell liability based on ratification, the plaintiff must show that the final policymaker in question had knowledge of the constitutional violation and actually approved of it. A mere failure to overrule a subordinate's actions, without more, is insufficient to support a section 1983 claim." Kyles v. Baker, 72 F. Supp. 3d 1021, 1044 (N.D. Cal. 2014) (internal quotation marks and citations omitted). "The final policymaker's response to the subordinate's unconstitutional conduct must amount to more than acquiescence; he or she must have affirmatively approved both the subordinate's decision and the basis for it." Id. Tibbet is the only potential "final policymaker" that Plaintiff identifies, and there are no facts to indicate that Tibbet "affirmatively approved" of anything that his subordinates did on the day of Plaintiff's arrest. Plaintiff states that "only through discovery can Plaintiff perfect this allegation with evidence." Opp. at 8. If that is true, then Plaintiff should not have included this allegation in his complaint. Plaintiff's ratification claim is, therefore, dismissed with leave to amend.
b. Plaintiff Fails to State a Claim Against the City for Inadequate Training
Next, Defendant argues that Plaintiff fails to state a claim based on inadequate training. MTD at 7. "[T]he inadequacy of police training may serve as the basis for Section 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Jones v. Cty. of Contra Costa, 2016 WL 1569974, at *3 (N.D. Cal. Apr. 19, 2016) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). Additionally, "failure to train may give rise to a Monell claim only when the training itself caused the constitutional violation - not in situations where an errant employee caused a constitutional violation, despite adequate training." Jones, 2016 WL 1569974, at *3.
Plaintiff alleges that the City "[f]ail[ed] to provide adequate training and supervision to FPD Officers with respect to constitutional limits on force, detention, and provision of medical care." Compl. ¶ 10(A). Plaintiff provides only conclusory allegations and no facts to support his claim that the City improperly trained its officers. Plaintiff's claim against the City based on a failure to train theory is dismissed with leave to amend.
2. § 1983 Claims Against Tibbet
Defendant Tibbet argues that any claims against him in his official capacity should be dismissed. MTD at 8. When a plaintiff files suit against both a local government entity and an officer in his official capacity, "the court may dismiss the officer as a redundant defendant." Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cty. Sheriff Dep't, 533 F.3d 780, 799 (9th Cir. 2008). Claims against officers in their personal capacities, however, may remain. Fontana v. Alpine Cty., 750 F. Supp. 2d 1148, 1155 (E.D. Cal. 2010). Plaintiff's claims against Tibbet in his official capacity in this complaint are hereby dismissed with prejudice.
"[A] supervisory official can be found liable in his individual capacity if there is a sufficient nexus between his own conduct and the constitutional violations committed by subordinates." Johnson v. City of Vallejo, 99 F. Supp. 3d 1212, 1219 (E.D. Cal. 2015). "In a section 1983 claim, a supervisor is liable for the acts of his subordinates if the supervisor participated in or directed the violations, or knew of the violations of subordinates and failed to act to prevent them." Id. (internal quotation marks and citations omitted). Defendant argues that Plaintiff fails to state a claim against Tibbet in his individual capacity because there are no facts showing that Tibbet "was present or even aware of the alleged acts at the time of the incident." MTD at 9-10. Once again, Plaintiff fails to provide any facts to support his conclusory allegations regarding Tibbet's actions. Thus, Plaintiff's § 1983 excessive force claim against Tibbet in his individual capacity is dismissed with leave to amend.
B. Second Cause of Action: Failure to Provide Medical Services
The due process clause of the Fourteenth Amendment protects the rights of people in police custody "to not have officials remain deliberately indifferent to their serious medical needs." Gibson v. Cty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). Officers or prison officials act with "deliberate indifference" if they "deny, delay or intentionally interfere with medical treatment." Palmer v. Plummer, 1995 WL 381882, at *2 (N.D. Cal. Jun. 20, 1995). But, "the indifference to the inmate's medical needs must be substantial; inadequate treatment due to negligence, inadvertence, or differences in judgment between an inmate and medical personnel does not rise to the level of a constitutional violation." Williams v. Ralston, 2014 WL 3926990, at *5 (C.D. Cal. Aug. 12, 2014).
Like his first cause of action, Plaintiff's second cause of action is brought pursuant to § 1983. Compl. at 10. Thus, to hold the City liable for failure to provide medical treatment, Plaintiff must allege that a policy or practice of City caused the constitutional violation. Austin v. Cty. of Alameda, 2015 WL 7180616, at *1 (N.D. Cal. Nov. 16, 2015).
Plaintiff fails to allege a policy or practice of deliberate indifference. The only facts Plaintiff provides to support the allegation of a policy or practice is his own experience with the FPD. This is insufficient to show that the City had a policy or practice of acting deliberately indifferent to the medical needs of those in custody. See Gaines v. Cty. of L.A., 2014 WL 2042243, at *5 (C.D. Cal May 16, 2014).
Defendants also argue that Plaintiff fails to state a deliberate indifference claim against Tibbet. MTD at 11-12. There are no facts alleged in this complaint sufficient to support a deliberate indifference claim against Tibbet. Additionally, Plaintiff does not address in his opposition Defendants' arguments regarding the second cause of action. Plaintiff merely summarizes the law, but does not provide any analysis to show that he has properly stated a deliberate indifference claim against the City or Tibbet. Plaintiff's second cause of action is dismissed with leave to amend.
C. Third Cause of Action: Bane Act
The Bane Act creates an individual cause of action where "a person . . . whether or not acting under the color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion" with a right secured by federal or state law. Cal. Civ. Code § 52.1(a). "In order to state a claim under this statute, Plaintiff must plead facts showing violence or intimidation by threat of violence by the accused defendant." Clifford v. Regents of Univ. of Cal., 2012 WL 1565702, at *9 (E.D. Cal. Apr. 30, 2012), aff'd, 584 F. App'x 431 (9th Cir. 2014). Pleading a violation of the Bane Act requires a plaintiff to show "both a constitutional violation and that the violation was brought about by threats, intimidation, or coercion." Sandoval v. Cty. of Sonoma, 2016 WL 612905, at *2 (N.D. Cal. Feb. 16, 2016). Additionally, "in the context of claims involving wrongful detention, courts have found that the [Bane Act] requires a showing of coercion independent from the coercion inherent in the wrongful detention itself." Avila v. California, 2015 WL 6003289, at *2 (E.D. Cal. Oct. 14, 2015) (internal quotation marks omitted) (emphasis added).
Plaintiff does not allege a constitutional violation or use of threats or coercion by Tibbet. Plaintiff's Bane Act claim against Tibbet in his official capacity is dismissed with prejudice (because such a claim is duplicative of a claim against the City) and the Bane Act claim against Tibbet in his individual capacity is dismissed with leave to amend.
As to the liability of the City under the Bane Act, "public entities may be held liable for injuries proximately caused by their employees within the scope of employment if the act or omission would have given rise to a cause of action against that employee or his personal representative." Morse v. Cty. of Merced, 2016 WL 3254034, at *6 (E.D. Cal. Jun. 13, 2016) (internal quotation marks and citations omitted). Thus, the City can be held liable under the Bane Act if the acts of the police officers themselves give rise to a Bane Act claim.
Plaintiff alleges wrongful acts by various police officers, but all such acts are in the context of the alleged false arrest and false imprisonment. In Plaintiff's opposition, he fails to specifically identify any facts in his complaint which indicate threats, intimidation, and coercion which are independent from intimidation and coercion inherent in the alleged false arrest and imprisonment itself. Plaintiff's Bane Act claim against the City is, therefore, dismissed with leave to amend.
D. Fifth Cause of Action: Negligence
Plaintiff brings his negligence claim against both the City and Tibbet. Compl. at 14. "Public entities in California are not liable for state-law tort claims for any injuries caused by their conduct except where such liability is expressly authorized by statute." Dias v. City of San Leandro, 2011 WL 2837597, at *3 (N.D. Cal. Jul. 15, 2011); Cal. Gov't Code § 815.2. Thus, the City is immune from liability under a common law negligence claim. Additionally, Plaintiff's allegations in support of his negligence claim are conclusory and not supported by any facts showing that Tibbet was involved in the FPD's interactions with Plaintiff. Thus, Plaintiff fails to plead a common law negligence claim against Tibbet.
Plaintiff also alleges that Defendants are liable for negligence per se because they violated California Government Code § 845.6. Compl. ¶ 55. Section 845.6 states that "[n]either a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but . . . a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care." Cal. Gov't Code § 845.6. "Liability under section 845.6 is limited to serious and obvious medical conditions requiring immediate care." Jett v. Penner, 439 F.3d 1091, 1099 (9th Cir. 2006). Complaining about a headache and asking for medication is insufficient to trigger liability under § 845.6. Irvine v. City & Cty. of San Francisco, 2001 WL 967524, at *13 (N.D. Cal. Jul. 12, 2001); Kinney v. Contra Costa Cty., 8 Cal. App. 3d 761, 770 (1970). As to the facts alleging that Plaintiff fainted in the police car and in the interrogation room, Plaintiff does not show that any officer "kn[ew] or ha[d] reason to know" that Plaintiff fainted and was in need of medical attention.
Plaintiff's common law negligence claim against the City is dismissed with prejudice. Plaintiff's common law negligence claim against Tibbet is dismissed with leave to amend. Plaintiff's § 845.6 claims against the City and Tibbet are dismissed with leave to amend.
E. Sixth and Seventh Causes of Action: False Imprisonment and False Arrest
"False arrest and false imprisonment are not separate torts. False arrest is but one way of committing a false imprisonment." White v. City of Laguna Beach, 67 9 F. Supp. 2d 1143, 1158 (C.D. Cal. 2010). "Under California law, the elements of a claim for false imprisonment are: (1) the nonconsensual, intentional confinement of a person; (2) without lawful privilege; and (3) for an appreciable period of time, however brief." Hernandez v. Cty. of Marin, 2012 WL 1207231, at *8 (N.D. Cal. Apr. 11, 2012).
Defendants argue that "no statutory basis is alleged for a false imprisonment claim against the City, thus the claim against it is not cognizable." MTD at 15. As discussed above, a state entity in California is immune from tort liability unless some statute abrogates that immunity. Plaintiff fails to identify a statute under which Plaintiff can base the City's liability. Plaintiff's false imprisonment claim against the City is dismissed with leave to amend.
Plaintiff's seventh cause of action for false arrest is dismissed with prejudice as duplicative of Plaintiff's false imprisonment claim.
III. ORDER
Plaintiff's first cause of action for excessive force, to the extent it is brought under the Fourteenth Amendment, is dismissed with prejudice but remains to the extent it is brought under the Fourth Amendment.
Plaintiff's claims against Chief Tibbet in his official capacity are dismissed with prejudice.
Plaintiff's common law negligence claim against the City (sixth cause of action) is dismissed with prejudice.
Plaintiff's false arrest claim (seventh cause of action) is dismissed with prejudice.
Plaintiff's remaining claims against Tibbet in his individual capacity and against the City that were challenged in this motion to dismiss are dismissed with leave to amend.
Plaintiff shall file his amended complaint within twenty days from the date of this Order. Defendants' responsive pleadings are due within twenty days thereafter. The Court advises that failure to cure the defects identified in this Order may be grounds for dismissal of those claims without further leave to amend. Dick v. Am. Home Mortgage Servicing, Inc., 2013 WL 5299180, at *6 (E.D. Cal. 2013). If Plaintiff elects not to amend his complaint, the case will proceed on the remaining claims and Defendants shall file their answer to the complaint within thirty days from the date of this Order.
Finally, Defendants' reply brief is five pages longer than the page limit allowed by the Court in its Order re Filing Requirements (Doc. #7-2). As indicated by the Order, the Court did not consider any arguments made past the fifth page of the reply. Counsel for Defendants must pay a $250.00 sanction ($50.00 per page for the five pages over the limit) within ten days of the date of this order.
IT IS SO ORDERED. Dated: July 13, 2016
/s/_________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE