Opinion
No. C-00-1645 JCS
August 11, 2000
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS OR, IN ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
Defendant's Motion To Dismiss, Or In The Alternative, Motion For Summary Judgment came on for hearing on Friday, July 21, 2000 at 9:30 a.m. The Court issued an order on July 21, 2000 granting in part and denying in part Defendant's motion and reserving judgment as to several issues. The Court also ordered additional briefing on the issue of the tolling of the statute of limitations with respect to Plaintiff Bryan Bassette's federal law claims. Defendant submitted a supplemental brief on Friday, July 28, 2000.
Plaintiffs were given until Friday, August 4, 2000 to file a reply brief but have not filed any response. The Court now addresses the issues raised by Defendant's motion that were not addressed in its July 21, 2000 order. For the reasons stated below, this Court GRANTS in part and DENIES in part Defendant's motion to dismiss as to those issues.
I. INTRODUCTION
Plaintiff Bryan Bassette and his father, Plaintiff Hugh Bassette, brought this action in pro se. Plaintiffs allege that Oakland police officers, as employees of Defendant City of Oakland, unlawfully stopped, searched, and detained Plaintiff Bryan Bassette and two of his friends solely on the basis of their race. Plaintiffs bring federal law claims under 42 U.S.C. § 1981, 1983 (based upon both the Fourth and Fourteenth Amendments), 1985, 1986 and 2000d. Plaintiffs also assert a number of state law claims and request declaratory and injunctive relief.
In Defendant's motion, it argued that: (1) all of Plaintiffs' federal law claims are barred by the applicable statutes of limitations; (2) Plaintiffs' conspiracy allegations should be dismissed for failure to allege conspiracy with specificity; (3) all of Plaintiff Hugh Bassette's state law claims should be dismissed because he failed to exhaust administrative remedies; (4) all of Plaintiff Bryan Bassette's state law claims are barred by the applicable statute of limitations; (5) Plaintiffs lack standing for equitable relief; and (6)
Plaintiff Hugh Bassette may not represent his son Bryan Bassette in this action. In their Opposition, Plaintiffs conceded that their state law claims were defective. However, they argued that their federal law claims were timely and that they should be permitted to conduct discovery on their conspiracy claim before the Court addresses the sufficiency of the allegations supporting that claim.
At the hearing, Plaintiff Hugh Bassette stated that his son, Bryan, turned eighteen on July 27, 1999. He also agreed to the dismissal of all of his own individual claims. Those claims he asserted as guardian ad litem will be deemed to be asserted by his son on his own behalf because he is no longer a minor.
Following the July 21, 2000, hearing on Defendant's motion, this Court issued an Order Granting In Part And Denying In Part Defendant's Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment. In that order, the Court: 1) dismissed all claims by Hugh Bassette, as guardian litem, without prejudice; 2) dismissed all of Plaintiffs' state law claims; 3) denied Defendant's alternative motion for summary judgment without prejudice; and 4) ordered that Bryan Bassette either retain a lawyer or represent himself. The Court also ordered supplemental briefing on the issue of the tolling of the applicable statutes of limitations for Bryan Bassette's federal law claims. The Court now addresses the following remaining issues with respect to Defendant's motion: 1) whether Plaintiff's claims under §§ 1981, 1983, 1985, 1986 and 2000d are barred by statute of limitations; 2) whether Plaintiff Bryan Bassette (now the only plaintiff in this action) alleged a valid 42 U.S.C. § 1985 claim; 3) whether Plaintiff may proceed with his claim under 42 U.S.C. § 1986; and 4) whether Plaintiff has standing to pray for equitable relief.
Although Plaintiff's Claim Four is labeled as a § 1983 claim, in the text of the Complaint Plaintiff alleges a violation of his rights under 42 U.S.C. § 1981. Complaint at 8, — 46. The Court therefore construes this claim as a § 1981 claim. In addition, although Defendant does not raise its statute of limitations argument as it applies to § 1981 claims, and may, in fact, not have read Plaintiff's Complaint as asserting such a claim, the Court in this order addresses the question of whether the § 1981 claim is timely.
References below to "the Plaintiff" are to Plaintiff Bryan Bassette.
II. BACKGROUND
In Plaintiff's Complaint and in his Opposition to Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, Plaintiff alleges the following:
On April 30, 1999, Plaintiff Bryan Bassette and another passenger, Lashauda Peters, were riding in a car driven by Michael Dennis, running "last minute errands" for their high school prom that evening. Complaint at — 14-15. At 2:30 p.m., they were stopped by an Oakland Police Officer, who told them that they had been stopped for failing to use a turn signal. Opposition at 1. Plaintiffs allege, however, that a signal was used and that they were pulled over solely on the basis of their race. Id. All three individuals are African-American. Complaint at — 23.
After calling for backup, the officer told Michael Dennis that he would be searched. Id. at — 19. Dennis was placed in the back of the police car. Id. at — 20. The officer then told Plaintiff Bryan Bassette "to put his arms behind his head and arch his back." Id. at — 21. Plaintiff and Peters were then asked to sit on the car. Id. According to the Complaint, when Plaintiff told the officer that he was violating Plaintiff's constitutional rights, the officer told Dennis that he would receive a traffic ticket for Plaintiff Bryan Bassette's actions. Id. In the end, no ticket was issued, either for failure to use a turn signal or for any other offense allegedly committed by Bryan Bassette. Id. at — 24-5. They were detained for approximately thirty minutes. Id. at — 22.
Pursuant to California Gov. Code § 910 et seq., Hugh Bassette filed and signed a grievance claim on behalf of Bryan Bassette with the City Attorney's Office of Oakland on May 19, 1999. Opposition at 2.
The claim was denied on October 7, 1999. Id. This action was filed on May 9, 2000. Id. Hugh Bassette prepared the Complaint in this action on behalf of Plaintiff Bryan Bassette and named himself guardian ad litem for Bryan, who was a minor at the time of the incident. Complaint at — 2. Both Hugh Bassette and Bryan Bassette signed the Complaint, which named the City of Oakland and John Does One and Two as Defendants. Plaintiff seeks equitable relief, compensatory damages, punitive damages, statutory damages under Cal. Civ. Code § 52(b), and attorneys' fees pursuant to 42 U.S.C. § 1988, Cal. Civ. Code § 52(b), and Cal. Civ. Proc. Code § 1021.5.
Although it was unclear from the pleadings, at the hearing on this motion Hugh Bassette informed the Court that Bryan Bassette turned eighteen on July 27, 1999.
III. LEGAL STANDARD
Federal Courts must construe pro se complaints liberally. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). The rule of liberal construction is especially important in civil rights cases. Johnson v. State of California, 207 F.3d 650, 653 (9th Cir. 2000). A pro se complaint therefore should not be dismissed if it states a claim under any legal theory, even if the plaintiff erroneously relies on a different legal theory. See, e.g., Haddock v. Board of Dental Examiners of California, 777 F.2d 462, 464-65 (9th Cir. 1985). Courts should not undertake to infer another cause of action when a pro se complaint clearly states a claim under a specified cause of action. See Bogovich v. Sandoval, 189 F.3d 999, 1001 (9th Cir. 1999). The party who brings a suit is master to decide what law he will rely upon. See id.
IV. ANALYSIS A. Statute of Limitations (Claims One, Two, Three, Four and Five)
Defendant argued in its motion that all of Plaintiff's federal law claims should be dismissed because this action was filed after the applicable one-year statute of limitations had expired. In its supplemental brief, however, Defendant conceded that the statute of limitations on Plaintiff Bryan Bassette's § 1983 claims was tolled because he was a minor at the time of the alleged incident. Defendant did not address in either its motion or its supplemental brief whether Plaintiff's remaining federal law claims, brought under 42 U.S.C. § 1981, 1985, 1986 and 2000d were tolled by Plaintiff's minority. Below, the Court addresses Defendant's statute of limitations argument as it applies to Plaintiff's claims under §§ 1981, 1983, 1985, 1986 and 2000d.
1. 42 U.S.C. § 1983 (Claims Two and Three)
Although § 1983 does not contain a specific statute of limitations, the Supreme Court has held that section 1983 claims are governed by the state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276 (1985). Similarly, state law governs the issue of whether the statute of limitations has been tolled for § 1983 claims. Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999) (quoting Wilson v. Garcia, 471 U.S. 261, 269 (1985)). In California, the one-year statute of limitations for personal injury actions set forth in Cal. Civ. Proc. Code § 340 applies to section 1983 claims. Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir. 1989). However, a plaintiff's claim is tolled under California law until the plaintiff reaches the age of eighteen. Cal. Civ. Proc. Code § 352(a) Cal. Fam. Code § 6500 (providing that the age of majority in California is eighteen). Although § 352(b) creates an exception to this rule where the defendant is a public entity, California courts and the Ninth Circuit have held that § 352(b) is inapplicable to civil rights claims. May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980) (holding that § 352(b) did not apply to plaintiff's § 1983 claim).
Section 352 provides,
(a) If a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335) is, at the time the cause of action accrued either under the age of majority or insane, the time of the disability is not part of the time limited for the commencement of the action.
(b) This section does not apply to an action against a public entity or public employee upon a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) or Chapter 2 (commencing with Section 910) of Part 3, or Chapter 3 (commencing with Section 950) of Part 4, of Division 3.6 of Title 1 of the Government Code. This subdivision shall not apply to any claim presented to a public entity prior to January 1, 1971.
Here, Plaintiff's § 1983 claims accrued on April 30, 1999, the date of the alleged incident, because Plaintiff had reason to know of his injury on this day. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). Therefore, unless the statute was tolled, it would have expired on May 1, 2000. However, because Bryan Bassette did not turn eighteen until July 27, 1999, he had until July 27, 2000, to file his § 1983 claims. The Complaint was filed on May 9, 2000. Plaintiff's § 1983 claims against the City of Oakland and John Doe Defendants were timely, as Defendant concedes in its supplemental brief.
As Defendant noted in the Motion to Dismiss, April 30, 2000, fell on a Sunday and therefore, the limitations period was extended to May 1, 2000. The Complaint in this action was filed on May 9, 2000.
2. 42 U.S.C. § 2000d (Claim One)
Section 2000d, like § 1983, does not contain its own statute of limitations. Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993). The Ninth Circuit has held that California's one-year statute of limitations for personal injury also applies to claims under 42 U.S.C. § 2000d. Id. Further, California tolling rules apply to § 2000d claims. See Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999). Therefore, under Cal. Civ. Proc. Code § 352(a), the statute of limitations on Plaintiff's § 2000d claim was tolled until he reached eighteen and his claim was timely filed.
3. 42 U.S.C. § 1981 (Claim Four)
The same analysis applies to Plaintiff's claim under § 1981 as applies to his claims under § 1983 and 2000d. In particular, § 1981 claims are governed by the state statute of limitations for personal injury. Goodman v. Lukens Steel Company, 482 U.S. 656, 661 (1987). Further, state tolling rules apply to § 1981 claims. See Johnson v. State of California, 207 F.3d 650, 654 (9th Cir. 2000) (applying a California tolling provision to the plaintiff's § 1981 claim). Therefore, the statute of limitations on Plaintiff's § 1981 claim was tolled until he reached eighteen and his claim was timely filed.
4. 42 U.S.C. § 1985(3) (Claim Five)
The same statute of limitations applies to § 1985 claims as applies to § 1983 claims. McDougal v. County of Imperial, 942 F.2d 668, 673 (9th Cir. 1991). Therefore, Plaintiff's § 1985 claim was timely filed.
5. 42 U.S.C. § 1986 (Claim Five)
The Court reserves judgment as to the timeliness of Plaintiff's § 1986 claim, which, as discussed below, is dismissed on the grounds that Plaintiff has not alleged a valid § 1985 claim. The Court notes, however, that this claim, as currently pleaded may not be timely. In contrast to Plaintiff's §§ 1983, 1985, and 2000d claims, Plaintiff's claim under 42 U.S.C. § 1986 is subject to federal equitable tolling principles because § 1986 contains an express one-year statute of limitations. 42 U.S.C. § 1986; Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th Cir. 1999). The doctrine of federal equitable tolling applies to a federal claim containing an express statute of limitations so long as tolling is consistent with legislative intent.
American Pipe and Construction v. Utah, 414 U.S. 538, 558 (1974). The Ninth Circuit has held that equitable tolling does apply to § 1986 claims. Ellis, 176 F.3d at 1189 n. 3. Unless tolled, the statute of limitations on this claim expired one year after accrual — May 1, 2000. Therefore, in amending his Complaint, Plaintiff must allege facts, if any exist, indicating that federal equitable tolling principles are invoked with respect to his § 1986 claim or to provide an alternative basis for tolling the statute of limitations.
B. 42 U.S.C. § 1985 (Claim Five)
Section 1985(3) provides as follows:
3) Depriving persons of rights or privileges
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
Defendant contends that Plaintiff's conspiracy claim under 42 U.S.C. § 1985 should be dismissed because it is based upon vague and conclusory allegations. Motion to Dismiss at 6. The Court agrees.
The Ninth Circuit has held that "[a] claim under this section must allege facts to support the allegation that defendants conspired together. A mere allegation of conspiracy without factual specificity is insufficient." Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 626 (9th Cir. 1988).
Unsubstantiated, conclusory, vague or general allegations of a conspiracy to deprive the plaintiff of constitutional rights are not enough. Id. at 625. Even a pro se plaintiff must allege some factual basis to substantiate his conclusion that defendants conspired together to deprive him of his constitutionally protected interests. Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980). Specifically, a plaintiff must allege specific facts with respect to the following requirements for claims brought under § 1985(3):
(1) a conspiracy; 2) for the purposes of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of this conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. . . . Further, the second of these four elements requires that in addition to identifying a legally protected right, a plaintiff must demonstrate a deprivation of that right motivated by `some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator's action.'
Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (quoting Griffin v. Breckenridge, 403 U.S. at 102).
Here, Plaintiff alleges as the basis for his conspiracy claim the conclusion that Defendants conspired and that "the supervisory defendants had knowledge of the conspiracy to violate plaintiff's civil rights and of the violations committed, and had the power to prevent these wrongs, but neglected or refused to do so." Complaint at 9. This is insufficient. Plaintiff must allege specific facts that indicate the veracity of his claim — including facts that show the existence of a conspiracy. Therefore, the Court finds that Plaintiff has not satisfied the pleading requirements that are applied to conspiracy claims brought under § 1985.
C. 42 U.S.C. § 1986 (Claim Five)
Section 1986 provides that:
[e]very person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented.
A "claim can be stated under § 1986 only if the complaint contains a valid claim under § 1985." McCalden, 955 F.2d at 1223 (citing Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988)). Because Plaintiff has failed to state a claim under § 1985, he has also failed to state a claim under § 1986.
D. Declaratory and Injunctive Relief (Claim Thirteen)
Plaintiff seeks a declaratory judgment that Defendants' conduct amounted to a violation of Plaintiff's rights under the laws and constitution of the United States. Complaint at 12. He further seeks an injunction prohibiting Defendants from engaging in racial profiling and requests that the Court order Defendants to implement preventative mechanisms designed to ensure that racial profiling does not continue in the future. Id. Defendant argues that Plaintiff is not entitled to equitable relief because he has not shown a realistic threat of future injury. Motion to Dismiss at 11.
In order to have standing for equitable relief, the plaintiff must establish: 1) the likelihood of substantial and immediate irreparable injury and 2) the inadequacy of remedies at law. O'Shea v. Littleton, 414 U.S. 488, 502 (1974) (holding that class action plaintiffs had failed to state an adequate basis for equitable relief where the plaintiffs did not allege any past injury and relied solely on the threat of future injury). Speculative allegations of future injury are not sufficient to entitle one to equitable relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 110 (1983); see also Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999).
Defendant cites to Hodgers-Durgin for the proposition that Plaintiff lacks standing for equitable relief. There, the court held that plaintiffs who brought a class action seeking to enjoin Border Patrol Agents from racially profiling Hispanic-Americans were not entitled to equitable relief because they had not demonstrated a sufficient likelihood that they would be subjected to the same conduct in the future. Hodgers-Durgin, 199 F.3d at 1044. In Hodgers-Durgin, however, the court considered the appropriateness of injunctive relief on a full evidentiary record. Here, in contrast, discovery has not yet begun and the Court is asked to make a determination on the basis of the pleadings alone. The Court finds that dismissal of Plaintiff's claim for equitable relief is premature at this stage of the case.
V. CONCLUSION
The Court HEREBY ORDERS as follows:
1. Defendant's motion with respect to Claims One, Two, Three, and Four, is DENIED on the ground that these claims were timely filed;
2. Defendant's motion as to Claim Five is GRANTED and that claim is hereby DISMISSED with leave to amend within thirty (30) days of this order; if Plaintiff amends his § 1985 claim to allege that claim with sufficient specificity, his § 1986 claim shall be reinstated so long as Plaintiff amends his § 1986 claim to allege facts showing that it is timely; and
3. Defendant's motion as to Claim Thirteen is DENIED without prejudice on the ground that Defendant's motion is premature.
IT IS SO ORDERED.