Opinion
24-cv-00426-EMC (EMC)
07-29-2024
DEAUDRY EUGENE CARR, Plaintiffs, v. FEDERAL PROTECTIVE SERVICES, et al., Defendants.
ORDER GRANTING IN PART SAN FRANCISCO COUNTY SHERRIFF'S DEPARTMENT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM DOCKET NO. 26
EDWARD M. CHEN, UNITED STATES DISTRICT JUDGE
Plaintiff Deaudry Eugene Carr Jr. (“Carr”), proceeding pro se and in forma pauperis, sued Defendants Federal Protective Services (“FPS”) and the San Francisco County Sherriff's Department (“Sheriff's Department” or “Department”) on January 24, 2024. Docket No. 1 (“Compl.”). Presently pending before the Court is the Sheriff's Department's Motion to Dismiss the Complaint (Fed. R. Civ. P. 12(b)(6)), or in the alternative, for a More Definite Statement (Fed. R. Civ. P. 12(e)). Docket No. 26 (“Mot.”). Carr opposed the motion, and included additional factual allegations not included in the complaint in that opposition filing. See Docket No. 27 (“Opp.”). For the reasons discussed herein, the Department's Motion to Dismiss is hereby GRANTED in part. Docket No. 26. Carr's federal and state law claims are dismissed with leave to amend. Carr's claims arising from criminal law are dismissed without leave to amend.
Carr's first application to proceed in forma pauperis was denied with leave to amend, by Magistrate Judge Westmore because the filing was incomplete. Docket Nos 4-5. On February 22, 2024, Carr re-filed the motion. Docket No. 8. Judge Westmore filed two orders to show cause to address discrepancies in Carr's IFP filing between monthly income and rent. Docket Nos. 9-10. After Carr clarified the discrepancies, Judge Westmore granted the IFP application on April 18, 2024. Docket No. 12.
FPS also filed a Motion to Dismiss noticed to be heard on August 22, 2024. Docket No. 29.
The Complaint arises from several instances wherein Carr was arrested after attempting to enter the federal building at 450 Golden Gate Avenue in San Francisco. Carr alleges numerous claims in the Complaint including federal claims, state law claims, and unspecified criminal law claims. As it pertains to the Sherriff's Department, Carr alleged in his complaint that the Department used excessive force during one incident while he was detained; on November 7, 2023, he was forcibly fingerprinted behind his back while handcuffed causing him pain and injury. Compl. at 4:12-16. However, in Carr's opposition filing he discussed excessive force by the Department on two occasions: November 18, 2022, when he was forcibly fingerprinted behind his back and again on November 13, 2022, during fingerprinting while his photo was taken. Opp. at 3-4. Carr clarified in his opposition that on November 7, 2023, the Sherriff's Department did not use excessive force when fingerprinting him as was originally alleged. See Id. at 3.
The Sheriff's Department argues the Court should dismiss the complaint without leave to amend pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, for the Court to order Plaintiff file a more definite statement pursuant to Fed.R.Civ.P. 12(e). Mot. The Sheriff's Department contends that it is not a proper defendant to a lawsuit because it is a department of the City and County of San Francisco (the “City”) and lacks the power to sue or be sued as the Department is not an independent public corporation. Id. at 5. It also argues that the complaint is vague and ambiguous, violating Fed.R.Civ.P. 8(a). Id. at 6. Further, that Plaintiff has not adequately alleged a claim against it for which it is not immune. Id. at 7-10. The Sheriff's Department also asserts that the additional facts alleged in the opposition are not part of the pleadings and thus should not be considered, but that even considering those facts, Plaintiff has failed to state a claim against it. Docket No. 28 (“Reply”).
The Department is an entity which may be sued. Thus, dismissal is not appropriate on that basis. See Duarte v. City of Stockton, 60 F.4th 566, 573 (9th Cir.), cert. denied, 143 S.Ct. 2665 (2023) (affirming prior Ninth Circuit decisions finding that sub-departments of cities and counties, including sheriff's departments and police departments, are suable entities and holding that the City of Stockton and Stockton Police Department are persons within the meaning of § 1983 that may be sued in federal court.); accord Fed. R. Civ. P 17(b)(3) (dictating that an entity's amenability to suit in federal court is determined by the law of the state in which the court is located); Cal. Gov. Code § 945 (“[a] public entity may sue or be sued”); Cal. Gov. Code § 811.2 (defining a “public entity” to include “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State”).
However, to sue the Department for federal claims, a plaintiff must show that the act was conducted pursuant to a custom, practice or policy of the department; this may be shown to be the result of a failure to train or ratification by a person with policy-making authority. See Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)).
Carr has not alleged facts sufficient to state a claim under Monell via any of these three avenues. The allegations in the Complaint as they pertain to the Department center upon one incident of excessive force, which ordinarily does not establish a custom or policy, and Carr does not allege the act was conducted pursuant to a custom or policy. Considering the opposition, Carr identifies two incidents of excessive force during fingerprinting, but the assertion undercuts the existence of a policy as it concedes on one occasion, the fingerprinting was conducted without excessive force. See Opp. at 3-4. Carr also does not allege that the act was conducted or ratified by a person with policy-making authority or that it was a result of a failure to train. See generally Compl.; Opp. at 3-4. Nor does he establish a failure to train so obviously needed that the failure constituted deliberate indifference. See id.
Thus, the federal claims are DISMISSED with leave to amend. If Carr can, in good faith, add allegations to his complaint showing that the purported excessive force is the result of a custom, practice or policy by the Department he may amend the Complaint to reflect those allegations.
The state claims are also dismissed. Construing the complaint liberally, Carr alleges assault. However, municipalities and their sub-departments are immune from state law claims unless a statute specifically authorizes suit against the municipality and that statute is identified in the Complaint. Cal. Gov't Code § 815; Brown v. Poway Unified School Dist., 4 Cal.4th 820, 829 (1993); Rodriguez v. Inglewood Unified School Dist., 186 Cal.App.3d 707, 716 (1986) (“in California, all government tort liability must be based on statute”) (emphasis in original) (citation omitted). Carr has not identified such a statute.
As to the merits, Carr has not stated a claim for relief. To prove assault under California law, Plaintiff “must establish that: ‘(1) the officers threatened to touch him in a harmful or offensive manner; (2) it reasonably appeared to him that they were about to carry out the threat; (3) he did not consent to the conduct; (4) he was harmed; and (5) the officers' conduct was a substantial factor in causing the harm.” Johnson v. United States, No. 13-cv-02405-JD, 2016 WL 4488180, at *9 (N.D. Cal. Aug. 26, 2016) (citation omitted)). Where claims of assault concern conduct of police officers, Plaintiff “must also establish, for each cause of action, that the officers used unreasonable force.” Id. at *9 (quotations omitted). The following factors are relevant to whether the force was reasonable: “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Ki Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). Carr describes that he was forced to be fingerprinted with handcuffs on causing extreme pain and a red rash on his wrist. Compl. 4:12-16. Carr alleges that he clearly stated that he was being hurt- suggesting that the officer was aware of the harm and did not temper it. Id. However, Carr does not provide information as to whether he was posing a threat to the officers, actively resisting, or other circumstances necessary to determine the propriety of the force. See Kingsley, 576 U.S. at 397. The Complaint thus does not include sufficient information to find that the force was unreasonable. But the Court cannot say any amendment would be futile. To the extent that Carr has a good faith basis to allege that he was compliant and/or posed no threat, or other facts that would render the force used against him unreasonable, Carr may be able to state a claim under California law. Carr must also cure the procedural defects regarding the statutory basis for his suit - the failure to cite statutory authority for bringing suit against a municipality. Thus, the state law claims are DISMISSED with leave to amend.
Carr also raises, vaguely, that the Department committed unspecified crimes against him. Any claims arising from criminal law are DISMISSED without leave to amend. As a private citizen, Carr does not have a right of action to assert criminal laws. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); see also, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (no private right of action under 18 U.S.C. §§ 241, 242); Yegorov v. Spain, 2019 WL 5091151, at *2 (E.D. Cal. Jul. 17, 2019) (no private right of action under 18 U.S.C. § 1113 for attempted murder).
Lastly, any amended complaint should state clearly which claims Carr is alleging against each defendant. See Fed. R. Civ. P. 12(e) (requiring a complaint not be “so vague or ambiguous that the party cannot reasonably prepare a response”); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding.”). In the “Claims” section of the complaint form, labeled “Name the law or right violated” Carr provides: “assault, wrong arrest, discrimination.” Compl. at 5. However, Carr left blank the next line asking him to “Name the defendants who violated it.” Id. In view of the allegations in the Complaint, it seems that Carr is alleging assault against the Sheriff's Department, and wrongful arrest and discrimination against Federal Protective Services. To this end, Carr does not allege any discriminatory acts by the Department, so the Court assumes that the discrimination claim is not directed against the Sheriff's Department. However, Carr must state clearly which claims relate to each defendant in any amended complaint.
To the extent that Carr wishes to amend his complaint against the Sheriffs Department, he must do so by August 19, 2024 (three weeks from the date of this Order) This Order disposes of Docket No. 26.
IT IS SO ORDERED