Opinion
3:18-cv-01269-BTM-AGS
07-07-2021
ELIZABETH JIMINEZ, individually, and as successor in interest of Fernando Geovanni Llanez, deceased; FERNANDO LLANEZ, individually, and as successor in interest of Fernando Geovanni Llanez, deceased, Plaintiffs, v. UNITED STATES OF AMERICA; CITY OF CHULA VISTA, a public entity; RONALDO RICARDO GONZALEZ, an individual; MARCUS OSORIO, an individual; CHRIS BARONI, an individual; ANGELA SANCHEZ, an individual; MICHAEL BURBANK, an individual; JEREMY DORN, an individual; ANTHONY CASTELLANOS; an individual, MARK MEREDITH, an individual; DOES 1-100, inclusive, Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS [ECF NOS. 24, 26]
HONORABLE BARRY TED MOSKOWITZ UNITED STATES DISTRICT JUDGE
Before the Court are the United States of America, Ronaldo Gonzalez, Marcus Osorio, Chris Baroni, Angela Sanchez, Michael Burbank, Jeremy Dorn, Anthony Castellanos, Mark Meredith, Juan Munoz, Jeffrey Grimming, Jacqleen Riley, and Lori Giannantonio's Motion to Dismiss Plaintiffs' Second Amended Complaint (“SAC”) and the City of Chula Vista's Motion to Dismiss Plaintiffs' SAC. (ECF Nos. 24, 26.)
I. BACKGROUND
Plaintiffs are the parents of Fernando Geovanni Llanez (“Decedent”), whom Plaintiffs allege was wrongfully shot and killed by an undercover Department of Homeland Security (“DHS”) agent during a federal undercover drug-sting operation in Chula Vista, California on June 14, 2016. (ECF No. 15 (“SAC”), ¶¶ 3-4, 20.) Plaintiffs name as defendants the United States, the City of Chula Vista (the “City”), eleven federal officers, and a federal task force officer named Mark Meredith who was employed by the City's police department at all times relevant. (Id. ¶¶ 5-12, 18.) Plaintiffs allege the sting operation was organized by the DHS in coordination with the Drug Enforcement Agency and Customs and Border Protection. (Id. ¶ 22-26.) Plaintiffs further allege that the City has an agreement with one or more of the aforementioned federal agencies “to receive assets seized in connection with [the joint task force operations of the City's] police officers, including, but not limited to” Defendant Meredith, and that Defendant Meredith “was assigned . . . to assist” the sting operation by the City as part of his employment duties. (Id. ¶¶ 12(a), 14.)
According to Plaintiffs, “Federal and California law enforcement personnel” transported 2, 000 pounds of marijuana from Tijuana, Mexico to California on June 2, 2016 with the intent to sell the marijuana “to fund the operations of their respective agencies.” (Id. ¶ 20.)
After several failed attempts to sell the marijuana to other potential buyers, Defendant Gonzalez negotiated the potential sale of the marijuana to non-party Damian Martinez through a non-party confidential informant. (Id. ¶¶ 21-31.) Mr. Martinez hired Decedent to drop off and pick up a rental van that would be used to transport the marijuana. (Id. ¶ 32.) Plaintiffs allege that Decedent “had no idea [he] was involved in a drug transaction”-Mr. Martinez purportedly hired Decedent “for $500.00 to drop off a van in the morning, and then later the same day pick up the van after a debtor of [Mr. Martinez] had deposited a repayment.” (Id. ¶¶ 20, 31-32, 43.) On June 14, 2016, Decedent dropped off the empty van at a prearranged location, a shopping center in Chula Vista, and left the keys under the passenger seat. (Id. ¶ 33.) Defendants Castellanos, Gonzalez, Osorio, and Meredith picked up the van that same morning and drove it to a secure location for loading. (Id. ¶ 34). The van was loaded with marijuana and driven by Defendant Castellanos to a pre-arranged location, another shopping center in Chula Vista, for pick up by the buyers. (Id. ¶¶ 34-35.)
According to Plaintiffs, the following were present at the pick-up location: Defendants Gonzalez, Castellanos, Riley and Meredith, the confidential informant, an undercover team “of approximately six people, ” “San Diego County Sheriff Deputies from the [Border Crime Suppression Team], ” a helicopter, and “one or more officers from the [City's] Police Department.” (Id. ¶¶ 12(g), 36.) Plaintiffs further allege that the City's “Police Department personnel were in constant radio contact with law enforcement on the ground and in the air to advise that ICE will be conducting an undercover operation in a [sic] unmarked vehicles, that agents were in the area for a drug exchange and specifically that ‘Mark Meredith will be on the operation.'” (Id. ¶ 12(e).)
At approximately 1:20 p.m., “two young Hispanic males” arrived at the pick-up location and began negotiating with Defendant Gonzalez over the price of the marijuana, who agreed to “reduce the price from $200,000 to $150,000.” (Id. ¶¶ 38-41.) At approximately 2:00 p.m., “a driver dropped off” Decedent at the pick-up location and Decedent approached the loaded van and met Defendant Gonzalez. (Id. ¶¶ 42, 44.) Before he arrived at the pick-up location, however, Decedent was given a taser by Mr. Martinez “in the event the delivery driver tried to injure [Decedent] or steal the van.” (Id. ¶ 42.) Less than a minute after meeting Decedent at the pick-up location, Defendant Gonzalez inserted the key into the driver's side door of the marijuana-laden van, but immediately withdrew the key and began running away. (Id. ¶¶ 45-46.) Decedent “drew the taser while running after [Defendant] Gonzalez” in an attempt “to stop him from stealing the only set of keys to the van.” (Id. ¶ 46.) “Despite having out-run [Decedent] . . . and being out of range of the taser, ” Defendant Gonzalez “stopped and drew his firearm from his ankle holster and shot [Decedent] four times.” (Id. ¶ 48.) Decedent did not fire his taser, which was destroyed by one of Defendant Gonzalez's first three shots fired at Decedent. (Id. ¶ 59.) Defendant Gonzalez delivered the “fourth and only fatal shot” into Decedent's back while Decedent “was on the ground, and no longer a threat” and “clearly unarmed.” (Id. ¶¶ 49, 61.) Defendant Gonzalez “never announced he was a federal agent or any other form of law enforcement officer.” (Id. ¶ 48.) Defendant Meredith observed Decedent “shot and falling to the ground . . . and being handcuffed by an individual who he believed to be [a] fellow team member.” (Id. ¶ 12(i)-(j).)
“Approximately 35 seconds after the last shot was fired, ” Defendants Baroni and Burbank picked Defendant Gonzalez up in a truck. (Id. ¶ 50.) Defendant Gonzalez told these agents he believed he had been tased and had possibly killed Decedent, but “there was no indication of any injury or discoloration to [Defendant] Gonzalez's back to indicate he had been hit by a taser.” (Id. ¶¶ 51-55, 58.) Nevertheless, “none of the agents in the vehicle attempted to call for medical help for [Decedent].” (Id. ¶ 55.) And while Defendant Meredith “was able to contact [the City's] Police at all times during the operation and was in communications with dispatchers, ” he “did not have emergency personnel in position to respond to an injury during the operation.” (Id. ¶ 12(m).)
Plaintiffs initiated two actions, which the Court consolidated in its June 1, 2020 order granting in part and denying in part Defendants' motions to dismiss, and granting Plaintiffs leave to file an amended complaint. (ECF No. 14.) Plaintiffs' SAC alleges claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as well as wrongful death/survival claims based on assault and battery and negligence. (ECF No. 15.) Defendants have filed two motions to dismiss. (ECF Nos. 24, 26.) Plaintiffs failed to timely file any oppositions to Defendants' motions.
III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations “must be enough to raise a right to relief above the speculative level.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). “A plaintiff's obligation to prove the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotations and citations omitted). Only a complaint that states a plausible claim for relief will survive a motion to dismiss. Id. // //
IV. DISCUSSION
A. The City's Motion to Dismiss
In their SAC, Plaintiffs' only claim against the City is a state law wrongful death claim based on the negligence of Mark Meredith. (SAC ¶¶ 109-114.) Plaintiffs allege that Mark Meredith participated in the drug-sting operation and was employed by the City's Police Department. (Id. ¶¶ 12-13.) The United States has certified that “at the time of the incident out of which the plaintiffs' claims arose, ” Meredith was a Federal Task Force Officer who “[was] acting within the scope of [his] federal office or employment.” (ECF No. 22.) The United States has also filed a Notice of Substitution of the United States for Meredith with respect to Plaintiffs' state law causes of action. (ECF No. 23.) The Court previously ruled that the City was immune from claims arising out of the “pre-shooting conduct” or “the use of force or other conduct of Defendant Gonzalez (or any other defendant or person).” (ECF No. 14 at 41.) However, the Court noted that a negligence claim might be stated against the City if Meredith “failed to promptly summon medical assistance for Decedent after he was shot by Defendant Gonzalez, ” and granted Plaintiffs leave to amend. (Id.)
In dismissing Plaintiffs' negligence claims in their first complaint, the Court explained that Plaintiffs “[did] not identify the source of [the duty for the individual defendants to summon medical aid] under California law” and failed to plead “whether medical assistance was in fact summoned for Decedent, and if so, when it was summoned.” (Id. at 37.) “If another defendant or individual timely sought medical assistance for Decedent, then [a] failure to duplicate such efforts could not have proximately caused Decedent's injuries or death.” (Id.) In addition, the Court explained that Plaintiffs failed to plead “whether Decedent survived Defendant Gonzalez's fourth shot, at least momentarily.” (Id.) “[I]f Decedent succumbed immediately from Defendant Gonzalez's fourth shot, then the failure to summon medical assistance could not have been the proximate cause of Decedent's injuries or death.” (Id. at 37-38.)
Plaintiffs have now added the following allegations to their SAC with regard to summoning medical assistance: (1) that Meredith “did not summon medical assistance”; (2) that “emergency personnel were not called until Defendants finally realized [Gonzalez] had not been abducted”; (3) that Defendant Baroni “transmitted over his radio that he had [Defendant Gonzalez] 51 seconds after the last shot was fired”; and (4) that after Decedent was shot, “he was handcuffed with his hands behind his back” and “placed facing down on his abdomen, ” which “accelerated his death.” (SAC ¶¶ 12(j), 20, 57.) However, the prior deficiencies in Plaintiffs' allegations remain. Plaintiffs still do not identify the source of the duty for Meredith-who Plaintiffs do not allege shot Decedent or made any physical contact with Decedent after the shooting-to timely summon medical aid for Decedent. While Plaintiffs now allege that Decedent at least momentarily survived the last shot and that medical assistance was ultimately summoned, it remains unclear who summoned medical assistance and when it was summoned-and thus unclear whether it would have been duplicative for Meredith to call for medical assistance and whether the call for medical assistance was timely. Even with Plaintiffs' additional allegations in their SAC, the Court can infer no “more than the mere possibility of misconduct” with respect to the City. See Iqbal, 556 U.S. at 679. The allegations in Plaintiffs' SAC with respect to the City's negligence in failing to timely call for medical attention for Decedent are insufficient to survive a motion to dismiss. Plaintiffs' claims against the City are dismissed without leave to amend because the Court previously provided Plaintiffs guidance on how to cure the deficiencies in their complaint, Plaintiffs failed to cure those deficiencies, and Plaintiffs failed to respond to the City's Motion to Dismiss.
B. The United States' Motion to Dismiss
1. Plaintiffs' previously dismissed claims
In the Court's June 1, 2020 order, the Court: (a) dismissed Plaintiffs' 42 U.S.C. § 1983 claims against the individual federal defendants because the alleged conduct during the federal sting operation was not taken under the color of state law, (ECF No. 14 at 13-16); (b) dismissed Plaintiffs' Bivens claims relating to Defendant Gonzalez's first three shots fired at Decedent, (id. at 16-22); (c) dismissed Plaintiffs' negligence claims concerning pre-shooting conduct against the United States for lack of subject matter jurisdiction pursuant to the discretionary function exception to the FTCA, (id. at 31-36); and (d) dismissed Plaintiffs' fourth and fifth wrongful death causes of actions as duplicative of their third wrongful death cause of action, (id. at 42). To the extent Plaintiffs replead these claims in their SAC, and for the same reasons, the Court dismisses them again.
2. Plaintiffs' new conspiracy claims
In their SAC, Plaintiffs have added conspiracy claims under 42 U.S.C. §§ 1983 and 1985, alleging that Defendants Gonzalez, Baroni, and Burbank “reached an understanding to state [that Defendant Gonzalez] believed he had been shot with a firearm” and “conceal the fact that [Defendant Gonzalez] knew he could have only been Tasered, and delay medical treatment for [Decedent] . . . by making completely false, inaccurate, and misleading reports, and to make false statements to investigating officers in order to conceal their wrongdoing.” (SAC ¶ 126.) In addition, Plaintiffs allege that Defendants Dorn, Grimming, Giannantonio, and Meredith “had access to both the audio recordings and the completely false, inaccurate, and misleading reports, and access to notes of false statements made to investigating officers in order to conceal the wrongdoing.” (Id. ¶ 127.)
The Court previously granted leave for Plaintiffs to cure the deficiencies identified in the Court's June 1, 2020 order. (ECF No. 14 at 42.) Plaintiffs' addition of new conspiracy claims exceeds the scope of the Court's June 1, 2020 order. See Williams & Cochrane, LLP v. Quechan Tribe of Fort Yuma Indian Rsrv., 2019 WL 4277431, at *13 (S.D. Cal. Sept. 10, 2019) (“leave to amend does not imply a blanket license for Plaintiffs to assert entirely new sets of predicate acts, claims, and parties”); Flores v. Gain Cap. Grp., LLC, 2019 WL 8017789, at *3 (C.D. Cal. June 28, 2019) (“Courts generally do not permit parties to exceed the scope of the leave to amend”). Further, Plaintiffs failed to seek the consent of Defendants or additional leave of the Court before adding their new conspiracy claims. See Fed. R. Civ. P. 15(a)(2) (“a party may amend its pleading only with the opposing party's written consent or the court's leave”).
In addition, Plaintiffs fail to adequately allege any cognizable damages caused by the conspiracy. See Guyton v. Phillips, 606 F.2d 248, 250 (9th Cir. 1979) (42 U.S.C. §§ 1983 and 1985 “does not provide a cause of action on behalf of a deceased based upon alleged violation of the deceased's civil rights which occurred after his death”); United States v. Maciel-Alcala, 612 F.3d 1092, 1098 (9th Cir. 2010) (“one cannot violate a deceased person's civil or constitutional rights”). Accordingly, the Court dismisses Plaintiffs' conspiracy claims without leave to amend. // // // // //
3. Plaintiffs' addition of new defendants
In their SAC, Plaintiffs have added new defendants Munoz, Grimming, Riley, and Giannantonio to their § 1983, Bivens, negligence, and conspiracy claims, after the applicable statutes of limitations have run. See Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991) (“the personal injury statute of limitations properly applies to Bivens claims”); Taylor, 993 F.2d at 711 (state personal injury limitation statute governs §§ 1983 and 1985 claims); Cal. Civ. Proc. Code § 335.1 (two-year statute of limitations for personal injury actions). Under Federal Rule of Civil Procedure Rule 15(c)(1)(C), an amendment that changes the party or the naming of the party against whom a claim is asserted relates back to the date of the original pleading if:
within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
The time period provided for by Federal Rules of Civil Procedures Rule 4(m) is “90 days after the complaint is filed.” Plaintiffs have not alleged facts as to why the applicable statute of limitations should be tolled for the newly added defendants, or provided any evidence that the requirements of Rule 15(c)(1)(C) and Rule 4(m) have been satisfied. Accordingly, the Court dismisses Defendants Munoz, Grimming, Riley, and Giannantonio from this action without prejudice.
4. Plaintiffs' excessive force claims against non-shooting defendants
The Court previously dismissed Plaintiffs' excessive force claims against Defendants Baroni, Burbank, Castellanos, Dorn, Osorio, and Sanchez because Plaintiffs “fail[ed] to allege how [they] could have personally prevented Defendant Gonzalez's alleged use of force or otherwise protected Decedent from such use of force.” (ECF No. 14 at 19-20.) The Court granted Plaintiffs leave to amend to allege facts regarding how the non-shooting defendants “personally violated Decedent's rights.” (Id. at 20.) Plaintiffs have added the following allegations in their SAC with regard to the non-shooting defendants: (a) that at the time of the shooting, Agent Gonzalez “was surrounded by Defendants Osorio, Baroni, Martinez, Baroni, Burbank, Castellano, [and] Dorn, ” (SAC ¶ 20.); (b) that the non-shooting defendants knew that “the large number of individuals arriving from the potential purchasers was irregular” and they “should have stopped the conveyance before [Defendant Gonzalez] panicked and ran away from the van, thus saving the life of [Decedent], ” (id.); (c) that [Defendants Dorn, Osorio, Sanchez, and Castellanos] “were all at the scene and able to summon medical personnel for [Decedent], however none did, ” (id. ¶ 56); and (d) that “at the behest and direction of Defendant [Riley], Decedent was handcuffed and then “left face-down, on his stomach . . . while he bled to death with no first aid, ” and that Decedent being handcuffed with his hands behind his back “made his chest cavity expand and likely caused increased internal hemorrhaging” and being “placed facing down on his abdomen . . . made [his] breathing more difficult . . . [and] accelerated his death, ” (id. ¶¶ 20, 56).
As to Defendant Gonzalez's alleged use of force with the fourth shot, Plaintiffs' additional allegations that certain Defendants were present at the scene and that they could have aborted the operation prior to the shooting are still insufficient to allege how they could have personally prevented Defendant Gonzalez's alleged use of force or otherwise protected Decedent from such use of force. See Bonivert v. City of Clarkston, 883 F.3d 865, 879 (9th Cir. 2018) (“An officer can be held liable for a constitutional violation only when there is a showing of integral participation or personal involvement in the unlawful conduct, as opposed to mere presence at the scene”); Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (“An officer's liability under section 1983 is predicated on his ‘integral participation' in the alleged violation . . . [which] require[s] some fundamental involvement in the conduct that allegedly caused the violation”); Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996) (rejecting “group liability in and of itself without individual participation in the unlawful conduct”); City & Cty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 615, 135 (2015) (a plaintiff “cannot establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided”); Burns v. City of Concord, 2017 WL 5751407, at *10 (N.D. Cal. Nov. 28, 2017) (“Liability for the non-shooting officers cannot be based on a theory that they escalated and provoked the situation that resulted in the shooting”).
Excessive force claims may be premised on the failure of a police officer to promptly seek medical attention for a detainee. See Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir. 1986) (“Due process requires that police officers seek the necessary medical attention for a detainee when he or she has been injured while being apprehended by either promptly summoning the necessary medical help or by taking the injured detainee to a hospital.”). However, as explained above, Plaintiffs fail to allege sufficient facts regarding the time that elapsed between when Decedent was shot and when medical attention was summoned, and thus the Court cannot determine from Plaintiffs' allegations whether medical attention was summoned promptly.
Excessive force claims may also be premised on an officer using an unreasonable amount of force in handcuffing an individual in certain circumstances. Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (an officer can be denied qualified immunity for using “an unreasonable amount of force in handcuffing” an individual where the individual did “not pose a safety risk, ” “passively resisted the handcuffing, ” and “the need for force, if any, was minimal at best”). Plaintiffs allege that Decedent was handcuffed while he was bleeding to death, and left facing down, causing breathing difficulties and accelerating his death. (SAC ¶¶ 20, 56.) Further, “police officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen . . . [but] can be held liable for failing to intercede only if they had an opportunity to intercede.” Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000), as amended (Oct. 31, 2000).
However, Plaintiffs only allege the personal involvement of Defendant Riley in Decedent's handcuffing. As explained above, the Court has dismissed Defendant Riley, who is a newly added Defendant, absent any showing by Plaintiffs regarding why Defendant Riley's addition to this case is timely or appropriate.
Accordingly, the Court dismisses Plaintiffs' excessive force claims as to the shooting against all Defendants except for Defendant Gonzalez. The Court will grant Plaintiffs leave to amend their excessive force claims related to the failure to promptly seek medical attention and Decedent's handcuffing because Plaintiffs may still be able to adequately allege those claims by stating facts regarding: (a) the time that elapsed between when Decedent was shot and when medical attention was summoned; (b) which Defendants delayed asking for medical assistance; (c) which Defendants were present on the scene after Decedent was shot and when Decedent was handcuffed; and (d) which Defendants had a realistic opportunity to intercede and failed to remove or adjust Decedent's handcuffs, reposition Decedent's body, or otherwise intercede.
5. Plaintiffs' negligence claim for failure to promptly summon medical aid
The Court dismisses Plaintiffs' negligence claim against the federal defendants for failure to promptly summon medical aid after Decedent was shot for the same reasons it dismisses Plaintiffs' claim against the City: (a) Plaintiffs fail to identify the source of the duty under California law for any of the federal defendants to timely summon medical aid for Decedent; and (b) while Plaintiffs allege that medical assistance was ultimately summoned, they fail to allege sufficient facts regarding the timing of when that medical assistance was summoned, such that it remains unclear whether medical assistance was summoned timely. The Court will grant Plaintiffs leave to amend this claim.
V. CONCLUSION
Based upon the foregoing, the United States, the individual Defendants, and the City's motions to dismiss (ECF Nos. 24, 26) are GRANTED. All claims are dismissed except for Plaintiffs' shooting-related excessive force claim against Defendant Gonzalez and assault and battery claims against the United States.Plaintiffs are only granted leave to file an amended complaint that satisfies the deficiencies identified above, which are limited to Plaintiffs' excessive force claims related to the failure to promptly seek medical attention and Decedent's handcuffing, and Plaintiff's negligence claim for failure to promptly summon medical attention.
Plaintiffs' assault and battery claims are alleged against Defendant Gonzalez. However, the United States has been substituted for Defendant Gonzalez pursuant to 28 U.S.C. § 2679. (See ECF Nos. 22, 23.)
Plaintiffs must comply with Local Rule 15.1(c). Plaintiffs shall file their amended complaint with the Court within four weeks of the entry of this order. Plaintiffs are warned that their failure to file an amended complaint on or before this date may result in the final dismissal of all claims dismissed by way of this Order without further notice. Defendants shall file their response to Plaintiffs' forthcoming amended complaint within twenty-one days after service of the amended complaint. Alternatively, if Plaintiffs have nothing further to add, Plaintiffs may file a notice of no intent to further amend.
IT IS SO ORDERED.