DEAN D. PREGERSON

ORDER DENYING DEFENDANTS' MOTION TO DISMISS

[Motion filed on 12/8/2010]

Presently before the court is Defendants' Motion to Dismiss First Amended Complaint of Deborah Jeffrey. Having considered the submissions of the parties, the court denies the motion and adopts the following order.

I. Background

Plaintiff Deborah Jeffery ("Jeffery") was engaged to be married to Reynard Davis ("Davis.") (First Amended Complaint ("FAC") ¶ 4). On July 4, 2009, Davis was physically restrained and tased by the individual Defendants, who are peace officers employed by the County defendant. (FAC ¶¶ 5, 16). The FAC alleges that Defendants used unlawful force against Davis, resulting in Davis's death. (FAC ¶¶ 17, 22). Davis's mother, sister, and Jefferey filed this civil rights suit, alleging ten causes of action. Of these, Jefferey brings only one cause of action, the Fourth Claim for Relief for Interference with Familial Relationship and Freedom of Association, in violation of 42 U.S.C. § 1983. (FAC ¶ 53). Defendants now move to dismiss Jeffery from the FAC for lack of standing under Federal Rule of Procedure 12(b)1 and 12(b)(6).

II. Legal Standard

Standing pertains to a federal court's subject matter jurisdiction, and may therefore be raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). Where the jurisdictional issue is separate from the merits of the case, the court may evaluate the merits for itself, without presuming a plaintiff's allegations as true. Thornhill Pub. Co., Inc. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

Under Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal when the plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a 12(b)(6) motion to dismiss for failure to state a claim, "all allegations of material fact are accepted as true and should be construed in the light most favorable to [the] plaintiff." Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).

In Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), the Supreme Court explained that a court considering a 12(b)(6) motion should first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief" (internal quotation marks omitted)).

III. Discussion

Defendants argue that only spouses, parents, and children of decedents may bring constitutional claims for loss of companionship and society under 42 U.S.C. § 1983 . (Motion at 3). Because Jefferey was merely the fiance of the decedent, Defendants assert, she lacks standing to bring the Fourth Claim for Relief. The court disagrees.

In Ward v. City of San Jose, the Ninth Circuit adopted the Seventh Circuit's rule that, unlike parents or children, siblings do not possess a Fourteenth Amendment liberty interest in companionship. Ward v. City of San Jose, 967, F.2d 280, 283-284 (9th Cir. 1991) (citing Bell v. City of Milwaukee, 746 F.2d 1205, 1248 (7th Cir. 1984), overruled by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005). In so doing, the Ninth Circuit, like the Seventh Circuit, expressed an unwillingness "to attach constitutional significance to [emotional] attachments outside the closely guarded parent-child relationship." Bell, 746 F.2d at 1247; See also Rentz v. Spokane County, 438 F.Supp.2d 1252, 1265 (E.D. Wash. 2006) (applying Ward and dismissing siblings' 14th Amendment claim); Palacios v. City of Oakland, 970 F.Supp. 732, 745 (N.D. Cal. 1997).

Here, however, Jefferey does not bring a 14th Amendment companionship claim. The Fourth Claim for Relief states, "DEBORAH JEFFERY also had a cognizable interest under the Free Association Clause of the First Amendment of the United States Constitution to continued association with her fiance, DECEDENT." (FAC ¶ 53). "As a result of the excessive force by Defendants . . . Plaintiff DEBORAH JEFFERIES [sic] was deprived of her constitutional right and freedom of association with her fiance, DECEDENT. (FAC ¶ 54). "Defendants . . . thus violated the Fourteenth [] Amendment rights of CARONDA GRAHAM AND SHAR'RHONDA DAVIS . . . and the First Amendment rights of DEBORAH JEFFERY . . . ." (FAC ¶ 55).

It is well established that "implicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others . . . ." Roberts v.United States Jaycees, 468 U.S. 609, 622 (1984). The Ninth Circuit, applying Roberts, has held that "dating and other social activities are worthy of some protection under the first amendment . . . ." IDK, Inc. v. Clark County, 836 F.2d 1185, 1194 (9th Cir. 1988). The First Amendment protects "certain intimate human relationships . . . that presuppose deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life." Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir. 1995) (citing Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 545 (1987) (internal quotation marks omitted). Jeffery's relationship with Davis, her fiance, was sufficiently personal and intimate to merit the protection of the First Amendment, under which Jeffery has standing to pursue her claim. See Matusick v. Erie County Water Authority, 2010 WL 2431077 at *8 (W.D.N.Y. 2010) (discussing extension of First Amendment right of intimate association to fiances).

IV. Conclusion

For the reasons stated above, Defendants' Motion to Dismiss First Amended Complaint of Plaintiff, Deborah Jefferey, is DENIED.

IT IS SO ORDERED.

DEAN D. PREGERSON

United States District Judge