Opinion
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
JOHN F. WALTER, District Judge.
PROCEEDINGS
Plaintiff, proceeding pro se, filed this civil rights action on July 9, 2008 in the Los Angeles County Superior Court. On September 19, 2008, Defendant City of Los Angeles ("Defendant") removed the action to this Court. On September 26, 2008, Defendant filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On November 6, 2008, the Court issued a Memorandum and Order dismissing the Complaint with leave to amend. On December 1, 2008, Plaintiff filed a First Amended Complaint.
On December 8, 2008, Defendant filed a "Motion to Dismiss Plaintiff's First Amended Complaint, etc." pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On January 12, 2009, Plaintiff filed an Opposition.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
The First Amended Complaint is not a model of clarity. It appears to be a "cut-and-paste" compilation from various sources, including this Court's Order of November 6, 2008. Plaintiff appears to attempt to allege civil rights claims pursuant to 42 U.S.C. section 1983 based on allegations that Los Angeles police officers subjected Plaintiff to false arrest and false imprisonment. Plaintiff does not sue the officers, however, but sues only the City and ten fictitious "Doe" defendants.
It is unclear whether the fictitious Defendants are the police officers allegedly involved in the incident (who are identified in the First Amended Complaint) or other persons. A plaintiff may name a fictitious defendant in the complaint if the plaintiff does not know the true identity of the defendant prior to the filing of the complaint. Wakefield v. Thompson , 177 F.3d 1160, 1163 (9th Cir. 1999).
However, the First Amended Complaint does contain a fairly understandable section entitled "FACTS COMMON TO ALL CAUSES OF ACTION." Plaintiff alleges that he entered into a contract to share an apartment with "Masud Kashefi (George Cash)" (First Amended Complaint, p. 4). Plaintiff received a "contract-receipt" and keys (id.). Plaintiff's tenancy allegedly was to begin on November 24, 2007 (id.). On December 31, 2007, Plaintiff allegedly discovered that the lock had been changed on the apartment door (id.). Plaintiff allegedly advised the manager's son that this was illegal, and obtained a new key (id.). Police officers Collyer and Gonzalez allegedly arrived and explained to the manager that what the manager was doing assertedly was against the law and that the situation was a civil matter (id.).
Cash's caregiver allegedly contended that Cash was not capable of making decisions due to his health, called the police, and allegedly "nagged" the police to carry out "the lock out" of Plaintiff (id.). The caregiver allegedly told police that Cash was not returning and had to vacate the premises by January 15, 2008 (id.).
Plaintiff alleges that, on January 7, 2008, police officers Fard and Gonzalez entered Plaintiff's residence and demanded that Plaintiff leave (First Amended Complaint, p. 5). Plaintiff allegedly informed the officers that police officers previously had found the matter to be a civil matter (id.). Officer Fard allegedly said that Fard did not care what had happened before, took Plaintiff's receipt and keys and threw them in the sink (id.). Officer Gonzalez allegedly handcuffed Plaintiff and the officers took Plaintiff to the police station, assertedly falsely telling Plaintiff that Plaintiff could come back later (id.). The officers then allegedly told Plaintiff that he could not return to the apartment and gave Plaintiff a "trespass notice" (id.). Plaintiff alleges that the incident constituted: (1) an illegal eviction; (2) a false arrest; (3) a violation of constitutional rights; (4) a "Cruel Malicious act"; (5) an "Unconscionable anti-social act"; (6) "Sub-human;" (7) "Hazing indignity"; and (8) a "Humiliating joke" (First Amended Complaint, pp. 5-6).
The First Amended Complaint purports to allege five claims for relief, styled "causes of action." The First Cause of Action contains excerpts from this Court's November 6, 2008 order, including a paragraph on the topic of municipal liability (First Amended Complaint, p. 6). Plaintiff alleges that, at all times mentioned, the omission or commission of acts by Defendants "and Does 1 through 100, inclusive" [sic] occurred within the territorial limits of the City (id.). Plaintiff also incorporates all of the previous allegations of the First Amended Complaint.
The Second Cause of Action alleges that the "defendants named in this action" violated Plaintiff's "basic liberties and inalienable rights of due process" (First Amended Complaint, p. 7). Plaintiff apparently contends that he was denied notice, a right to a fair hearing, an opportunity to present a case and submit evidence, and equal protection (id.).
The Third, Fourth and Fifth Causes of Action allege, respectively, claims for false arrest, unlawful search and seizure, and unlawful "detention, photographing and fingerprinting" (First Amended Complaint, p. 8). In a "Discussion" section, Plaintiff alleges that Defendants violated Plaintiff's rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments (First Amended Complaint, p. 9). Plaintiff seeks compensatory and punitive damages.
As the Court advised Plaintiff in the Order of November 8, 2008, Plaintiff may not recover punitive damages against the City. See City of Newport v. Fact Concerts, Inc. , 453 U.S. 247, 271 (1981); Ruvalcaba v. City of Los Angeles , 167 F.3d 514, 524 (9th Cir.), cert. denied, 528 U.S. 1003 (1999).
STANDARDS GOVERNING MOTION TO DISMISS
"To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of [Federal] Rule [of Civil Procedure] 8(a)(2)." Porter v. Jones , 319 F.3d 483, 494 (9th Cir. 2003). "Federal Rule of Civil Procedure 8(a)(2) requires only a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Erickson v. Pardus , 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007). "Specific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests." Id . (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (internal quotations and ellipses omitted)). "In addition, when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus , 127 S.Ct. at 2200 (citations omitted). "A document filed pro se is to be liberally construed [citation], and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 127 S.Ct. at 2200 (citations omitted).
DISCUSSION
The Court rejects Defendant's contention that the First Amended Complaint fails to put Defendant on notice of the claims against it. Liberally and reasonably construed, the First Amended Complaint gives sufficient notice of claims for false arrest, unreasonable search and seizure, and wrongful detention in violation of Due Process and the Fourth Amendment. Defendant asserts that the pleading alleges only conclusory allegations of unlawful arrest, and assertedly fails to "show" that Plaintiff was arrested or that the arrest was unlawful (see Memorandum in Support of Motion to Dismiss, p. 7). At the pleading stage, Plaintiff need not "show" anything in order to plead sufficient facts to put Defendant on notice of the claims against it. Plaintiff's allegations that Los Angeles police officers arrested Plaintiff after Plaintiff told them he had a lawful right to be on the property sufficiently allege a false arrest claim.
However, Plaintiff may not state a claim against municipal defendants for violation of the Due Process Clause of the Fifth Amendment. See Lee v. City of Los Angeles , 250 F.3d 668, 687 (9th Cir. 2001) ("The Due Process Clause of the Fifth Amendment... appl[ies] only to actions of the federal government - not to those of state or local governments.").
The Court hastens to correct, however, Defendant's apparent impression that the Fifth Amendment pertains only to "certain rights afforded to criminal defendants, such as double jeopardy and the right against self-incrimination" (Memorandum in Support of Motion to Dismiss, p. 4). The Fifth Amendment provides that "[n]o person... shall... be deprived of life, liberty, or property, without due process of law...." See U.S. Const. amend. V.
Moreover, under Albright v. Oliver , 510 U.S. 266 (1994), and Graham v. Connor , 490 U.S. 386 (1989), the Fourth Amendment, not the Due Process Clause, governs claims for unlawful search, false arrest and wrongful detention brought pursuant to 42 U.S.C. section 1983. See Awabdy v. City of Adelanto , 368 F.3d 1062, 1069 (9th Cir. 2004) ("The principle that Albright [v. Oliver] establishes is that no substantive due process right exists under the Fourteenth Amendment to be free from prosecution without probable cause.") (citations omitted); Fontana v. Haskin , 262 F.3d 871, 879-80 (9th Cir. 2001) (Fourth Amendment prohibition against unreasonable search and seizure "continues to apply after an arrestee is in the custody of the arresting officers") (citations and footnote omitted); Picray v. Sealock , 138 F.3d 767, 770 (9th Cir. 1998) (Fourth Amendment governed claim challenging plaintiff's arrest for wearing political buttons to polls); Larson v. Neimi , 9 F.3d 1397, 1400-01 (9th Cir. 1993) ("Fourth Amendment standards must be used when a person asserts that a public official has illegally seized him").
Plaintiff has failed to allege any basis to hold Defendant City of Los Angeles liable for the alleged actions of the police officers. As the Court advised Plaintiff in the Order of November 6, 2008, Plaintiff may not sue the City on a theory of respondeat superior, which is not a theory of liability cognizable under 42 U.S.C. section 1983. Polk County v. Dodson , 454 U.S. 312, 325 (1981); Gibson v. County of Washoe, Nev. , 290 F.3d 1175, 1185 (9th Cir. 2002), cert. denied, 537 U.S. 1106 (2003). A municipal entity may be held liable only if the alleged wrongdoing was committed pursuant to a municipal policy, custom or usage. See Board of County Commissioners of Bryan County, Oklahoma v. Brown , 520 U.S. 397, 402-04 (1997); Monell v. New York City Department of Social Services , 436 U.S. 658, 691 (1978); see also Galbraith v. County of Santa Clara , 307 F.3d 1119, 1127 (9th Cir. 2002) (plaintiff need only allege that an officers's conduct conformed to official policy, custom or practice); Gibson v. County of Washoe, Nev. , 290 F.3d at 1185-87 (describing "two routes" to municipal liability, where municipality's official policy, regulation or decision violated plaintiff's rights, or alternatively where municipality failed to act under circumstances showing its deliberate indifference to plaintiff's rights). The First Amended Complaint contains no allegations that any police officer acted pursuant to a City policy, custom or usage.
CONCLUSION AND ORDER
For the foregoing reasons, the First Amended Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a Second Amended Complaint. The Second Amended Complaint shall be complete in itself. It shall not refer in any manner to any prior complaint. Plaintiff may not add Defendants without leave of Court. See Fed.R.Civ.P. 21. Failure to file timely a Second Amended Complaint may result in the dismissal of this action.