Opinion
Case No. CV-01-03085-DT(CTx)
September 10, 2001
I. Background
A. Factual Summary
This action is brought by Plaintiff J. Lee ("Plaintiff") on his own behalf and as a representative of a class against numerous defendants for deprivation of civil rights by LAPD — 42 U.S.C § 1983, declaratory relief, injunctive relief, and claims under the Racketeer Influenced and Corrupt Organizations Act (RICO).
The following facts are alleged in the First Amended Complaint ("FAC"):
On or about December 7, 1999, Defendants Trevino, De Armond, and Dunkin without legal cause to do so, stopped, detained, searched, arrested Plaintiff, and caused false criminal charges to be made against Plaintiff, which were later terminated in Plaintiff's favor. (See FAC, ¶ 16.) Plaintiff remained in pretrial detention for four months, as a result of the criminal charges brought against him. (See id.)
Plaintiff alleges the following "counts" in the FAC:
1. Count One: violation of Plaintiff's Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983;
2. Count Two: conspiracy to violate Plaintiff's Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983;
3. Count Three: a policy, practice, procedure and custom of Fourth and Fourteenth Amendment violations under 42 U.S.C. § 1983;
4. Count Four: custom of improperly indemnifying and of conspiring to indemnify LAPD officers for punitive damages assessed against those officers by juries in civil rights cases under 42 U.S.C. § 1983;
5. Count Five: declaratory relief that there is a custom, pattern and practice of Fourth and Fourteenth Amendment violations;
6. Count Six: Injunction enjoining Defendants from engaging in the wrongful conduct described;
7. Count Seven: Racketeer Influenced and Corrupt Organizations Act (RICO), violations; and
8. Count Eight: conspiracy to violate Racketeer Influenced and Corrupt Organizations Act (RICO).
B. Procedural Summary
On April 4, 2001, Plaintiff filed the Complaint.
On April 5, 2001, this Court issued its Standing Order with Regard to Newly Assigned Cases.
On April 10, 2001 Plaintiff filed an Amended Complaint.
On July 30, 2001, Police Officers Trevino and De Armond filed Motion to Dismiss Portions of the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is set for hearing on October 1, 2001.
On July 30, 2001, City Attorney defendants James K. Hahn and Thomas Hokinson's filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is set for hearing on October 1, 2001.
On July 30, 2001, Commissioner defendant Gerald Chaleff filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is currently before this Court.
On July 30, 2001, Councilmember defendants' Michael Feuer and Joel Wach's, hereinafter collectively referred to as "Councilmember Defendants", filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is currently before this Court.
On July 30, 2001, Daryl F. Gates filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is currently before this Court.
On August 10, 2001, Bernard C. Parks filed a Notice of Motion and Motion to Dismiss portions of the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is set for hearing on October 1, 2001.
On August 10, 2001, defendant Helem Dunkin files a Notice of Joinder in defendant police officers Trevino and De Armond's Motion to Dismiss Portions of the Amended Complaint.
II. Discussion
A. Standard
In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12 (b)(6) the Court must assume that plaintiffs' allegations are true, and must construe plaintiffs' complaint in the light most favorable to plaintiff's. United States v. City of Redwood City, 640 F.2d 963, 967 (9th Cir. 1981). Moreover, even if the face of the pleadings indicates that recovery is unlikely, the plaintiff is still entitled to offer evidence in support of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Redwood City, 640 F.2d at 967. Finally, a court may not dismiss complaints pursuant to Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Russell v Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980).
Generally, orders granting motions to dismiss are without prejudice unless "allegations of other facts consistent with the challenged pleading could not possibly cure the defect." Schreiber Dist. v. Serv-Well Furniture, 806 F.2d 1393, 1401 (9th Cir. 1986).
B. Councilmember Defendants' Request for Judicial Notice
Defendants Michael Feuer and Joel Wachs (collectively, "Councilmember Defendants") ask this Court to take judicial notice of the relevant portions of the Charter of the City of Los Angeles, sections 21, 25 and 206(a)(2), which are attached to the Request for Judicial Notice.
A court must take judicial notice if a party requests it and supplies the court with the requisite information. Fed.R.Evid. 201(d). "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). This Court may take judicial notice of facts outside the pleadings without converting the motion to one for summary judgment. See Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (citing Sears, Roebuck Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956)).
A court may take judicial notice of "records and reports of administrative bodies" Mack, 798 F.2d at 1282 (citing Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953)). In addition, this Court may take judicial notice of documents that are public records and capable of accurate and ready confirmation by sources that cannot reasonably be questioned. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (courts may take judicial notice of matters of public record outside the pleadings).
In light of the above, this Court takes judicial notice of the aforementioned document and grants Councilmember Defendants' request.
C. Analysis
In this motion, Councilmember Defendants seek to dismiss all Counts, One through Eight. Councilmember Defendants are current members of the Los Angeles City Council.
Because Plaintiff refers to his claims as "counts," this Court will do so also to prevent confusion.
1. Dismissal of Count One is warranted
In Count One, Plaintiff brings a claim under 42 U.S.C. § 1983 alleging that these Councilmember Defendants violated Plaintiff's Fourth and Fourteenth Amendment tights. Councilmember Defendants contend that dismissal of this count is warranted because Plaintiff fails to establish that these Councilmember Defendants had direct personal participation in the alleged violations or that they were supervisors of the LAPD officers in their individual capacity.
First, this Court agrees with Councilmember Defendants that Plaintiff cannot premise these Councilmember Defendants' liability on direct participation in the alleged violation of his constitutional rights. Plaintiff does not allege that these Councilmember Defendants were present at the scene of his arrest nor does he allege that these Councilmember Defendants directed or ordered his arrest. Thus, liability of these Councilmember Defendants depends upon whether supervisorial liability can be established.
Supervisory liability of an individual defendant turns on the right of legal control over the direct tortfeasor. "To succeed on a claim of supervisory liability, plaintiff must establish that defendants were directly responsible for overseeing the performance of the alleged wrongdoer." Hernandez v. Gates, 100 F. Supp.2d 1209, 1218 (C.D. Cal. 2000). Because there is no respondeat superior liability under Section 1983, a supervisorial official is only liable for constitutional violations of his or her subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). For supervisorial liability to attach in the absence of direct participation, the plaintiff must establish a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). Liability is imposed upon a supervisory official for his or her own culpable action or inaction in the training, supervision, or control of subordinates, for acquiescence in the constitutional deprivations of which the complaint is made, or for conduct that showed a reckless or callous indifference to the rights of others. See Larez v. City of Los Angles, 946 F.2d 630, 646 (9th Cir. 1991).
This Court agrees with Councilmember Defendants that Plaintiff cannot establish supervisorial liability because Councilmember Defendants are not individually or directly responsible for overseeing the performance of the Officers. The Charter of the City of Los Angeles generally provides that the legislative power of the City is vested in the Council. See Charter of the City of Los Angeles, § 21. The Charter does not give the City Council the power or duty to supervise individual LAPD officers. See id. Rather, this supervisory authority is conferred upon the Chief of Police. See id. at § 206(a). Even if the Council had the power or duty to supervise LAPD officers, individual members could not be liable since the Charter does not grant members any power to act as individuals. Charter § 244 states that "action by the Council shall be taken by a majority vole of the entire membership of the Council." See id. at § 25 (emphasis added). Thus, Plaintiff cannot establish an individual capacity claim against Councilmember Defendants upon a theory of supervisor liability since these Councilmember Defendants have no power or duty to oversee the performance of individual LAPD officers. In his opposition, Plaintiff does not address Councilmember Defendants' argument and offers no additional arguments in support of this count. Thus, this Court finds that dismissal of this count is warranted with prejudice and without leave to amend.
2. Dismissal of Count Two is warranted
In Count Two, Plaintiff alleges that Councilmember Defendants conspired to violate Plaintiff's Fourth and Fourteenth Amendment rights. Councilmember Defendants contend that dismissal of this count is warranted because Plaintiff fails to establish that these Councilmember Defendants had direct personal participation in the alleged violations or that they were supervisors of the LAPD officers in their individual capacity.
As explained above, "Count One" fails to state individual capacity claims against Councilmember Defendants. It follows that the conspiracy claim of "Count Two" must also fail for the same reason. In his opposition, Plaintiff does not address Councilmember Defendants' argument and offers no additional arguments in support of this count. Thus, this Court finds that dismissal of this count is warranted with prejudice and without leave to amend.
3. Dismissal of Count Three is warranted
In Count Three, Plaintiff alleges that these Councilmember Defendants are liable based on a Monell theory — that the LAPD had a policy and custom of Fourth and Fourteenth Amendment violations by LAPD officers. Councilmember Defendants contend that the claim is unnecessary, improper, and redundant, and that dismissal of this count is warranted because the City of Los Angeles should be substituted in their stead as the proper Monell defendant.
The distinction between personal-capacity suits and official-capacity suits is that official-capacity suits generally represent only another way of pleading an action against an entity of which the officer is an agent. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). A personal-capacity suit seeks to impose personal liability upon a government official for actions taken under color of state law. See id. By contrast, "in an official-capacity suit the entity's `policy or custom' must have played a part in the violation of federal law." Id. at 166. An official-capacity suit based upon the allegation that an official policy or custom caused a deprivation of federally protected rights is a suit against the entity; "[i]t is not a suit against the official personally, for the real party in interest is the entity." Id. at 165-66 (citing Monell v. New York Dep't of Social Services, 436 U.S. 658, 690 n. 55 (1978)) (emphasis in original). Under Monell, municipalities are "persons" subject to suit under Section 1983 based upon an allegation that an official policy or custom is responsible for a deprivation of federally protected rights. See Monell v. New York Dep't of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Under the precedent discussed above, Plaintiff's Monell claim against these Councilmember Defendants in their official capacities is really a claim against the municipal entity itself. "[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Graham, 473 U.S. at 166 (citation omitted); see also Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)("A suit against a governmental officer in his official capacity is equivalent to a suit against the governmental entity itself.") As such, Councilmember Defendants request that this Court dismiss this claim as unnecessary, improper and redundant. They cite to the case of Luke Abbott, 954 F. Supp. 202, 203-4 (C.D. Cal. 1997). In Luke, the Court held that "the proper Monell defendant in a civil rights case is the local government entity, and not the local government officer sued in official capacity on behalf of the local governmental entity." Id. at 202. It stated that naming a local government officer in an official capacity claim "only leads to a duplication of documents and pleadings, as well as wasted public resources for increased attorneys fees." Id. at 204. Thus, it found that when both an officer and the local government entity are named in a lawsuit and the officer is named in an official capacity only, the officer is a redundant defendant and may be dismissed. See id. at 203. Here, Councilmember Defendants are named, but the local government entity, the City of Los Angeles, is not a named defendant. The Luke court addressed this situation and stated, "If only the official-capacity officer is named, it would be proper for the Court upon request to dismiss the officer and substitute instead the local government entity as the correct defendant." Id. at 204. This Court agrees with the reasoning of the Luke court and finds that it is appropriate in this case to dismiss this official capacity Monell claim against these Councilmember Defendants and substitute the City of Los Angeles in their stead as a defendant for this claim.
This Court notes that the Chief of Police is a named defendant and sued in his official capacity.
4. Dismissal of Count Four is not warranted
In Count Four, Plaintiff alleges that Councilmember Defendants are liable "because they have a custom of improperly indemnifying, and of conspiring to indemnify LAPD officers, for punitive damages assessed against those officers by juries in civil rights cases, because that practice was a moving force that caused the violations of the plaintiff's rights as alleged herein." (See SAC, ¶ 30.) Specifically, he alleges that the City Attorney defendants and Councilmember Defendants agreed among themselves to ensure that punitive damages awarded by juries against LAPD officers for civil rights violations would be paid by the City, and not by the officers. Councilmember Defendants seek to dismiss this count, claiming that it is unnecessary, improper, and redundant, and that dismissal of this count is warranted because the City of Los Angeles should be substituted in their stead as the proper Monell defendant. They assert the same arguments which they asserted with respect to the third count.
While Plaintiff does not make specific arguments with respect to this count, he cites a recent Ninth Circuit case which controls this Court's determination. In Navarro v. Block, 250 F.3d 729, 734 (9th Cir. 2001), the Ninth Circuit held that allegations in a civil rights complaint that prior decisions of the Los Angeles County Board of Supervisors to indemnify county sheriffs from punitive damage awards were made in bad faith and proximately caused a violation of plaintiffs constitutional rights were sufficient to state a claim for relief under Section 1983. It examined its earlier opinions in Trevino v. Gates, 23 F.3d 1480 (9th Cir. 1994), Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996) and Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000), in considering whether implementing indemnification procedures in bad faith violates a "clearly established" constitutional right. See id. at 732-34. It concluded that the plaintiff could allege a cognizable legal theory against local legislators for their implementation of the state created power to indemnify police officers from punitive damage awards in bad faith. See id. at 734. Thus, in a parallel case such as this, Navarro permits Plaintiff to plead a Section 1983 claim against these Councilmember Defendants, members of the Los Angeles City Council, in their official capacity, based on their prior decisions to indemnify police officers against punitive damages awards. However, this Court does not state a personal capacity claim and this Court notes the conclusion in Navarro, which is applicable here: "If, following discovery of the material facts, the evidence shows there to be no genuine issue on the material fact of the Supervisors' good faith, summary judgment would be appropriate. . . ." Id.
Thus, this Court finds that dismissal of this count is not warranted because an official capacity claim has been stated as against these Councilmember Defendants.
5. Dismissal of Counts Five and Six is warranted
In the Fifth and Sixth counts, Plaintiff seeks declaratory and injunctive relief, respectively. Councilmember Defendants seek to dismiss these counts on the basis that Plaintiff lacks standing.
This Court agrees with Councilmember Defendants that dismissal of these counts is warranted. First, because this Court has found that Plaintiff fails to state any claim against these Councilmember Defendants for direct violation of Plaintiff's civil rights, no basis exists for these equitable relief claims against these Councilmember Defendants. In addition, this Court finds that these claims for declaratory and injunctive relief are moot. A moot action is one where the parties lack a legally cognizable interest in the outcome. See Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985). To maintain an action for equitable relief, a plaintiff must allege a threat of future injury which is both "real and immediate." See City of Los Angeles v. Lyons, 461 U.S. 95, 1001, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). A plaintiff must demonstrate that a "credible threat" exists that he will again be subject to the specific injury for which he seeks declaratory or injunctive relief. See Kolender v. Lawson, 461 U.S. 353, 355 n. 3, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). In following the above principles, the Ninth Circuit has held that a plaintiff must show a likelihood that he will be affected again by that which he challenges. See Sample, 771 F.2d at 1342. The burden for showing a likelihood of recurrence is firmly on the plaintiff. See id.
Here, Plaintiff cannot credibly allege that he in particular faces a realistic threat of future constitutional violations by LAPD officers. Plaintiff's allegation of a past violation is insufficient. See O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Similarly, Plaintiff's general allegations of a recurring violation are conclusory and fall short of his burden to establish a "credible threat" of future injury that is both "real and immediate." As the Ninth Circuit has stated, "no matter how important the issue of how likely that a similar action will be brought, a court is without jurisdiction if there is not a sufficient likelihood of recurrence with respect to the party now before it." Sample, 771 F.2d at 1342. Accordingly, this Court dismisses Counts Five and Six for declaratory and injunctive relief with prejudice and without leave to amend.
6. Dismissal of Count Seven is warranted
In Count Seven, Plaintiff alleges that the Councilmember Defendants, along with the other defendants, violated the RICO statute, 18 U.S.C. § 1962. To establish a violation under Section 1962(c), a plaintiff must prove "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 279, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985).
a. Plaintiff does not plead any predicate acts
Councilmember Defendants first contend that Plaintiff does not have standing under RICO because he cannot plead any "predicate acts" sufficient to establish a RICO violation. A person can bring an action under RICO when he has been "injured in his business or property." See 18 U.S.C § 1964(c). The RICO Act sets forth a specific list of criminal "predicate acts" that may constitute "racketeering activity" for purposes of RICO. See id. at § 1961(1). Here, no such predicate act is alleged in the Amended Complaint. Plaintiff alleges that he wrongfully stopped, detained, searched and arrested and the false criminal charges were made against him. Such conduct does not, and cannot, fall within the list set forth in Section 1961(1). Indeed, the Seventh Circuit has states that civil rights and constitutional law violations are not predicate acts under RICO. See Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir. 1990).
In addition, Councilmember Defendants argue that the alleged conduct is not an injury to Plaintiff's business or property. A limitation to the RICO statute is that personal injuries are not compensable. See Oscar v. University Students Co-Op. Ass'n, 965 F.2d 783, 785 (9th Cir. 1992). "RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff." See id. at 786. As such, dismissal of Count Seven with prejudice and without leave to amend is warranted on these grounds.
b. Plaintiff alleges he suffered injury to his business
Councilmember Defendants argue that the alleged conduct is not an injury to Plaintiff's business or property. A person can bring an action under RICO when he has been "injured in his business or property." See 18 U.S.C. § 1964 (c). A limitation to the RICO statute is that personal injuries are not compensable. See Oscar v. University Students Co-Op Ass'n, 965 F.2d 783, 785 (9th Cir. 1992). "RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff." See id. At 786.
Plaintiff responds that he is suing for the loss of employment and employment opportunities and that these are injuries to his business and compensable under RICO. In support of his claim, he cites cases wherein the court have found that loss of employment and denial of employment benefits constitutes cognizable injuries to business for purposes of RICO, so long as the injuries were proximately caused by a pattern of racketeering activity. Construing the allegations in a more favorable light to Plaintiff, this Court can find that Plaintiff has sufficiently pled an injury to his business; however, his claim fails for the reasons explained herein.
c. Plaintiff does not plead any facts to show Councilmember
Defendants participated in the "operation or management" of a "racketeering enterprise"
Councilmember Defendants further argue that the Amended Complaint fails to allege facts to show that the Councilmember Defendants participated in the operation or management of a racketeering enterprise. Section 1962(c) provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
Because Plaintiff has not, and cannot consistently, plead facts under Section 1962(c), dismissal of this count is warranted on this basis with prejudice and without leave to amend.
d. Plaintiff does not allege a "pattern of racketeering activity"
Councilmember Defendants also assert that Plaintiff does not allege the requisite "pattern of racketeering activity." Again, this Court agrees. A "pattern or racketeering activity" "requires at least two acts of racketeering activity, . . . the last of which occurred within ten years . . . after the commission of a prior act of racketeering activity." 18 U.S.C. § 1961 (5). Here, Plaintiff only asserts a single incident. Not only does this single incident not constitute a "predicate activity," it does not constitute a "pattern of racketeering activity." As such, dismissal of the RICO count with prejudice and without leave to amend is further warranted on this basis.
7. Dismissal of Count Eight is warranted
Plaintiff alleges that Councilmember Defendants conspired to violate RICO. Section 1962(d) provides that "[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b) or (c) of this section." 18 U.S.C. § 1962 (d). The Ninth Circuit has defined a conspiracy to violate RICO as "an agreement to conduct or participate in the affairs of an enterprise and an agreement to the commission of at least two predicate acts." Neibel v. Trans World Assurance Co., 108 F.3d 1123, 1128 (9th Cir. 1997) (quoting Baumer v. Pachl, 8 F.3d 1341, 1346 (9th Cir. 1993)). Conspiracy to violate RICO requires a showing that the defendant was aware of the essential nature and scope of the enterprise and intended to participate in it. Baumer, 8 F.3d at 1346. Conclusory allegations that defendants conspired with each other to violate RICO are insufficient. See id.
This Court agreed with Councilmember Defendants that dismissal of this count is proper. First, as explained above, since the Plaintiff has not even alleged a RICO violation by pointing out a "predicate act", it follows that he cannot establish a RICO conspiracy. In any event, Plaintiff does not allege any facts to show that Councilmember Defendants agreed to participate in an enterprise and to the commission of at least two predicate acts. In short, dismissal of this count with prejudice and without leave to amend is warranted.
8. Self Recusal by this Court is not warranted
Plaintiff argues as follows:
Because plaintiff has learned that the court, Judge Tevrizian, has close and personal relationships with both the new Mayor, James K. Hahn, and the new Mayor's mayoral campaign chairman, William Wardlaw, the court should not rule on any matters involving Hahn, and should recuse itself from this case.
Plaintiff apparently bases this argument upon a private telephone conversation in which this Court was engaged and which was overheard by his attorney, Mr. Yagman, while Mr. Yagman was attending a settlement conference in this Court on another unrelated case. See Yagman Decl., ¶ 3.) Mr. Yagman speculates that this Court was speaking with Mr. Wardlaw about Mayor James Hahn. (See id.)
To end Mr. Yagman's speculation, this Court provides that it was in fact speaking with Mr. Wardlaw and that part of that conversation concerned congratulating Mr. Wardlaw for the election of Mayor Hahn. Plaintiff and his counsel's suggestion that this requires this Court to voluntarily recuse itself is frivolous and meritless. This Court finds absolutely no basis to recuse itself from this case. In addition, both William Wardlaw and his spouse Kim Wardlaw live in the same neighborhood as this Court. Kim Wardlaw is a former member of this Court and is presently serving as a Justice of the Ninth Circuit Court of Appeals. The Wardlaw's are known to all members of the Central District of California.
III. Conclusion
In light of the foregoing, this Court grants in part with prejudice and without leave to amend and denies in part Defendants Michael Feuer's and Joel Wachs' Motion to Dismiss the Amended Complaint. Specifically, this Court dismisses Counts One, Two, Five, Six, Seven and Eight with prejudice and without leave to amend as against these Councilmember Defendants, substitutes the City of Los Angeles as a defendant in Count Three, and denies dismissal of Count Four as against these Councilmember Defendants.
IT IS SO ORDERED.
ORDER GRANTING WITH PREJUDICE AND WITHOUT LEAVE TO AMEND DEFENDANT DARYL F. GATES'S MOTION TO DISMISS AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTEDI. Background
A. Factual Summary
This action is brought by Plaintiff J. Lee ("Plaintiff") on his own behalf and as a representative of a class against numerous defendants for deprivation of civil rights by LAPD — 42 U.S.C § 1983, declaratory relief, injunctive relief, and claims under the Racketeer Influenced and Corrupt Organizations Act (RICO).
The following facts are alleged in the First Amended Complaint ("FAC"):
On or about December 7, 1999, Defendants Trevino, De Armond, and Dunkin without legal cause to do so, stopped, detained, searched, arrested Plaintiff, and caused false criminal charges to be made against Plaintiff, which were later terminated in Plaintiff's favor. (See FAC, ¶ 16.) Plaintiff remained in pretrial detention for four months, as a result of the criminal charges brought against him. (See id.)
Plaintiff alleges the following "counts" in the FAC:
1. Count One: violation of Plaintiff's Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983;
2. Count Two: conspiracy to violate Plaintiff's Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983;
3. Count Three: a policy, practice, procedure and custom of Fourth and Fourteenth Amendment violations under 42 U.S.C. § 1983;
4. Count Four: custom of improperly indemnifying and of conspiring to indemnify LAPD officers for punitive damages assessed against those officers by juries in civil rights cases under 42 U.S.C. § 1983;
5. Count Five: declaratory relief that there is a custom, pattern and practice of Fourth and Fourteenth Amendment violations;
6. Count Six: Injunction enjoining Defendants from engaging in the wrongful conduct described;
7. Count Seven: Racketeer Influenced and Corrupt Organizations Act (RICO), violations; and
8. Count Eight: conspiracy to violate Racketeer Influenced and Corrupt Organizations Act (RICO).
B. Procedural Summary
On April 4, 2001, Plaintiff filed the Complaint.
On April 5, 2001, this Court issued its Standing Order with Regard to Newly Assigned Cases.
On April 10, 2001 Plaintiff filed an Amended Complaint.
On July 30, 2001, Police Officers Trevino and De Armond filed Motion to Dismiss Portions of the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is set for hearing on October 1, 2001.
On July 30, 2001, City Attorney defendants James K. Hahn and Thomas Hokinson's filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is set for hearing on October 1, 2001.
On July 30, 2001, Commissioner defendant Gerald Chaleff filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is currently before this Court.
On July 30, 2001, Councilmember defendants' Michael Feuer and Joel Wach's filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is currently before this Court.
On July 30, 2001, Daryl F. Gates ("Gates") filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is currently before this Court.
On August 10, 2001, Bernard C. Parks filed a Notice of Motion and Motion to Dismiss portions of the Amended Complaint for Failure to State a Claim Upon WWhich Relief Can Be Granted, which is set for hearing on October 1, 2001.
On August 10, 2001, defendant Helem Dunkin files a Notice of Joinder in defendant police officers Trevino and De Armond's Motion to Dismiss Portions of the Amended Complaint.
II. Discussion
A. Standard
In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12 (b)(6) the Court must assume that plaintiffs' allegations are true, and must construe plaintiffs' complaint in the light most favorable to plaintiffs. United States v. City of Redwood City, 640 F.2d 963, 967 (9th Cir. 1981). Moreover, even if the face of the pleadings indicates that recovery is unlikely, the plaintiff is still entitled to offer evidence in support of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Redwood City, 640 F.2d at 967. Finally, a court may not dismiss complaints pursuant to Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Russell v Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980).
Generally, orders granting motions to dismiss are without prejudice unless "allegations of other facts consistent with the challenged pleading could not possibly cure the defect." Schreiber Dist. v. Serv-Well Furniture, 806 F.2d 1393, 1401 (9th Cir. 1986).
B. Analysis
In this motion, Defendant Gates seeks to dismiss all Counts, One through Eight. Gates is a former Police Chief of the City of Los Angeles.
Because Plaintiff refers to his claims as "counts," this Court will do so also to prevent confusion.
1. Dismissal of Count One is Warranted
In Count One, Plaintiff alleges all defendants are liable to Plaintiff pursuant to 42 U.S.C. § 1983 for violations of his Fourth and Fourteenth Amendment rights. Gates seeks to dismiss this count contending that no facts support a claim against him.
In order to bring a claim under Section 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a constitutional right. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). This Court finds that Plaintiff has failed to allege facts to show that Gates acted under color of state law. Plaintiff specifically alleges that Gates is sued in his individual capacity only. (See FAC at ¶ 4). The only factual allegation specifically stated with respect to Gates is that he was the LAPD Chief of Police during 1978-1992. (See id.) However, the alleged incident occurred on December 7, 1999. As such, a presumption exists that a private party's conduct does not constitute governmental action. See Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 1999).
A private person may be shown to have acted "under color of state law" if he willfully participates in joint action with state officials to deprive another of a constitutional right. See Taylor v. List, 880 F.2d 1040, 1048 (9th Cir. 1989). In order to establish the requisite casual nexus between the conduct of a private party and an unreasonable search or seizure in a Section 1983 action, a plaintiff must allege facts to show that the private individual exercised control over the decision-making involved in the alleged police misconduct. See Mann v. City of Tuscon, Dept. of Police, 782 F.2d 790, 793 (9th Cir. 1986). Plaintiff alleges no facts to show how Gates as a private person acted under color of state law. As stated above, Plaintiff only alleges that Gates was Chief of Police during 1978-1992, and the alleged incident occurred in 1999. Thus, since Gates was not even employed by the LAPD at the time of the alleged incident, it would is be inconsistent for Plaintiff to set forth facts to show that Gates "exercised control over the decision-making involved in alleged police misconduct." Consequently, this Court finds that dismissal of Count One as to Gates is warranted with prejudice and without leave to amend.
2. Dismissal of Count Two is warranted
In Count Two, Plaintiff alleges that Gates conspired to violate Plaintiff's Fourth and Fourteenth Amendment rights. Gates contends that dismissal of this court is warranted because Plaintiff fails to allege sufficient facts. This Court agrees.
It is well-settled that complaints must "`allege with at least some degree of particularity overt acts which defendants engages in' that support the plaintiffs claim." Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (quoting Sherman V. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977)). As set forth above, because Plaintiff fails to allege any facts to show that Gates acted under color of state law, Plaintiff has not stated a claim that Gates violated Plaintiff's constitutional rights. It follows, then, that Plaintiff cannot state any facts alleging that Gates participated in an alleged conspiracy to violate Plaintiff's constitutional rights. As such, this Court finds that dismissal of Count Two as to Gates is warranted with prejudice and without leave to amend.
3. Dismissal of Count Three is warranted
Plaintiff's third count alleged that Gates is liable based on a Monell theory that the LAPD had a policy and custom of Fourth and Fourteenth Amendment violations by LAPD officers. Gates contends that dismissal of this court is warranted based on insufficient facts.
In this action, Gates in sued in his individual capacity only. There is no allegation that he had any official capacity with the LAPD on or about December 7, 1999, the date of the incident. A distinction between individual-capacity suits and official capacity suits is that official-capacity suits generally represent another way of pleading an action against an entity of which the officer is an agent. See Kentucky v. Graham, 473 U.S. 159, 165, 87 L.Ed.2d 114, 105 S.Ct. 3099 (1985). Local government entities are "persons" subject to suit under Section 1983 based upon an allegation that an official policy or custom is responsible for a deprivation of federally protected rights. See Monell v. New York Dep't of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because Gates is not sued in any official capacity, it would be inconsistent for Plaintiff to allege any facts that Gates established or enforced an official policy or custom at the time of the incident. As such, this Court finds that dismissal of this count as to Gates is warranted with prejudice and without leave to amend.
4. Dismissal of Count Four is warranted
In Count Four, Plaintiff alleges that Gates is liable based on Monell theory predicated upon allegations that the City Attorney defendants and the City Council member defendants had a custom of improperly indemnifying LAPD officers and that the alleged custom was a moving force that cased the violation of Plaintiff's civil rights. Gates seeks to dismiss this count contending a failure to state such a claim against him.
This Court finds that dismissal of this count against Gates is warranted with prejudice and without leave to amend. As set forth above, Gates is sued only on his individual capacity. Plaintiff cannot consistently allege any facts sufficient to state a Section 1983 claim against Gates in his official capacity. For the same reason, this count fails because Plaintiff cannot allege that Gates took any official action with respect to indemnifying police officers for punitive damages assessed against them.
5. Dismissal of Counts Five and Six is warranted
In the Fifth and Sixth counts, Plaintiff seeks declaratory and injunctive relief, respectively. Gates seeks to dismiss these counts on the basis that Plaintiff lacks standing.
This Court agrees with Defendant Gates that dismissal of these counts is warranted. First, because this Court has found that Plaintiff fails to state any claim against Gates for violation of Plaintiff's civil rights, no basis exists for these equitable relief claims against Gates. In addition, this Court finds that these claims for declaratory and injunctive relief are moot. A moot action is one where the parties lack a legally cognizable interest in the outcome. See Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985). To maintain an action for equitable relief, a plaintiff must allege a threat of future injury which is both "real and immediate." See City of Los Angeles v. Lyons, 461 U.S. 95, 1001, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). A plaintiff must demonstrate that a "credible threat" exists that he will again be subject to the specific injury for which he seeks declaratory or injunctive relief. See Kolender v. Lawson, 461 U.S. 353, 355 n. 3, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). In following the above principles, the Ninth Circuit has held that a plaintiff must show a likelihood that he will be affected again by that which he challenges. See Sample, 771 F.2d at 1342. The burden for showing a likelihood of recurrence is firmly on the plaintiff. See id.
Here, Plaintiff cannot credibly allege that he in particular faces a realistic threat of future constitutional violations by LAPD officers. Plaintiff's allegation of a past violation is insufficient. See O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Similarly, Plaintiff's general allegations of a recurring violation are conclusory and fall short of his burden to establish a "credible threat" of future injury that is both "real and immediate." As the Ninth Circuit has stated, "no matter how important the issue of how likely that a similar action will be brought, a court is without jurisdiction if there is not a sufficient liklihood of recurrence with respect to the party now before it." Sample, 771 F.2d at 1342. Accordingly, this Court dismisses Counts Five and Six for declaratory and injunctive relief with prejudice and without leave to amend.
6. Dismissal of Count Seven is warranted
In Count Seven, Plaintiff alleges that Gates, along with the other defendants, violated the RICO statute, 18 U.S.C. § 1962. To establish a violation under Section 1962(c), a plaintiff must prove "(1) conduct (2) of an enterprise (3) through a is pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 279, 496, 16 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985).
a. Plaintiff does not plead any predicate acts
Gates first contends that Plaintiff does not have standing under RICO because he cannot plead any "predicate acts" sufficient to establish a RICO violation. A person can bring an action under RICO when he has been "injured in his business or property." See 18 U.S.C § 1964(c). The RICO Act sets forth a specific list of criminal "predicate acts" that may constitute "racketeering activity" for purposes of RICO. See id. at § 1961(1). Here, no such predicate act is alleged in the Amended Complaint. Plaintiff alleges that he wrongfully stopped, detained, searched and arrested and the false criminal charges were made against him. Such conduct does not, and cannot, fall within the list set forth in Section 1961(1). Indeed, the Seventh Circuit has states that civil rights and constitutional law violations are not predicate acts under RICO. See Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir. 1990).
In addition, Gates argues that the alleged conduct is not an injury to Plaintiff's business or property. A limitation to the RICO statute is that personal injuries are not compensable. See Oscar v. University Students Co-Op. Ass'n, 965 F.2d 783, 785 (9th Cir. 1992). "RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff." See id. at 786. As such, dismissal of Count Seven with prejudice and without leave to amend is warranted on these grounds.
b. Plaintiff alleges he suffered injury to his business
Gates argues that the alleged conduct is not an injury to Plaintiff's business or property. A person can bring an action under RICO when he has been "injured in his business or property." See 18 U.S.C. § 1964 (c). A limitation to the RICO statute is that personal injuries are not compensable. See Oscar v. University Students Co-Op Ass'n, 965 F.2d 783, 785 (9th Cir. 1992). "RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff." See id. At 786.
Plaintiff responds that he is suing for the loss of employment and employment opportunities and that these are injuries to his business and compensable under RICO. In support of his claim, he cites cases wherein the court have found that loss of employment and denial of employment benefits constitutes cognizable injuries to business for purposes of RICO, so long as the injuries were proximately caused by a pattern of racketeering activity. Construing the allegations in a more favorable light to Plaintiff, this Court can find that Plaintiff has sufficiently pled an injury to his business; however, his claim fails for the reasons explained herein.
c. Plaintiff does not plead any facts to show Gates participated in the "operation or management" of a "racketeering enterprise"
Gates further argues that the Amended Complaint does not allege that he was a "person employed by or associated with" the LAPD on the date of the incident. This Court agrees. In fact, the only specific factual allegation alleged with respect to Gates is that he was the LAPD Chief of Police during "1978-92." Section 1962(c) provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
Because Plaintiff has not, and cannot consistently, plead facts under Section 1962(c), dismissal of this count with prejudice and without leave to amend is warranted on this is basis.
d. Plaintiff does not allege a "pattern of racketeering activity"
Gates also asserts that Plaintiff does not allege the requisite "pattern of racketeering activity." Again, this Court agrees. A "pattern or racketeering activity" "requires at least two acts of racketeering activity, . . . the last of which occurred within ten years . . . after the commission of a prior act of racketeering activity." 18 U.S.C. § 1961 (5). Here, Plaintiff only asserts a single incident. Not only does this single incident not constitute a "predicate activity," it does not constitute a "pattern of racketeering activity." As such, dismissal of the RICO count with prejudice and without leave to amend is further warranted on this basis
7. Dismissal of Count Eight is warranted
Plaintiff alleges that Defendants conspired to violate RICO. Section 1962(d) provides that "[i]t shall be unlawfull for any person to conspire to violate any of the provisions of subsection (a), (b)or (c) of this section." 18 U.S.C. § 1962 (d). The Ninth Circuit has defined a conpiracy to violate RICO as "an agreement to conduct or participate in the affairs of an enterprise and an agreement to the commission of at least two predicate acts." Neibel v. Trans World Assurance Co., 108 F.3d 1123, 1128 (9th Cir. 1997) (quoting Baumer v. Pachl, 8 F.3d 1341, 1346 (9th Cir. 1993)). Conspiracy to violate RICO requires a showing that the defendant was aware of the essential nature and scope of the enterprise and intended to participate in it. Baumer, 8 F.3d at 1346. Conclusory allegations that defendants conspired with each other to violate RICO are insufficient. See id.
This Court agreed with Gates that dismissal of this count is proper. First, as explained above, since the Plaintiff has not even alleged a RICO violation by pointing out a "predicate act", it follows that he cannot establish a RICO conspiracy. In any event, Plaintiff does not allege any facts to show that Gates agreed to participate in an enterprise and to the commission of at least two predicate acts. In short, dismissal of this count with prejudice with prejudice and without leave to amend is warranted.
8. Self Recusal by this Court is not warranted
Plaintiff argues as follows:
Because plaintiff has learned that the court, Judge Tevrizian, has close and personal relationships with both the new Mayor, James K. Hahn, and the new Mayor's mayoral campaign chairman, William Wardlaw, the court should not rule on any matters involving Hahn, and should recuse itself from this case.
Plaintiff apparently bases this argument upon a private telephone conversation in which this Court was engaged and which was overheard by his attorney, Mr. Yagman, while Mr. Yagman was attending a settlement conference in this Court on another unrelated case. (See Yaginan Decl., ¶ 3.) Mr. Yagman speculates that this Court was speaking with Mr. Wardlaw about Mayor James Hahn. (See id.)
To end Mr. Yagman's speculation, this Court provides that it was in fact speaking with Mr. Wardlaw and that part of that conversation concerned congratulating Mr. Wardlaw for the election of Mayor Hahn. Plaintiff and his counsel's suggestion that this requires this Court to voluntarily recuse itself is frivolous and meritless. This Court finds absolutely no basis to recuse itself from this case. In addition, both William Wardlaw and his spouse Kim Wardlaw live in the same neighborhood as this Court. Kim Wardlaw is a former member of this Court and is presently serving as a Justice of the Ninth Circuit Court of Appeals. The Wardlaw's are known to all members of the Central District of California.
III. Conclusion
In light of the foregoing, this Court grants with prejudice and without leave to amend Defendant Daryl F. Gates's Motion to Dismiss Amended Complaint for Failure to State a Claim Upon With Relief Can Be Granted.
IT IS SO ORDERED.
ORDER GRANTING WITH PREJUDICE AND WITHOUT LEAVE TO AMEND COMMISSIONER DEFENDANT GERALD CHALEFF'S MOTION TO DISMISS THE AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED; AND GRANTING DEFENDANT'S REQUEST FOR JUDICIAL NOTICEI. Background
A. Factual Summary
This action is brought by Plaintiff J. Lee ("Plaintiff") on his own behalf and as a representative of a class against numerous defendants for deprivation of civil rights by LAPD — 42 U.S.C § 1983, declaratory relief, injunctive relief, and claims under the Racketeer Influenced and Corrupt Organizations Act (RICO).
The following facts are alleged in the First Amended Complaint ("FAC"):
On or about December 7, 1999, Defendants Trevino, De Armond, and Dunkin without legal cause to do so, stopped, detained, searched, arrested Plaintiff, and caused false criminal charges to be made against Plaintiff, which were later terminated in Plaintiff's favor. (See FAC, ¶ 16.) Plaintiff remained in pretrial detention for four months, as a result of the criminal charges brought against him. (See id.)
Plaintiff alleges the following "counts" in the FAC:
1. Count One: violation of Plaintiff's Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983;
2. Count Two: conspiracy to violate Plaintiff's Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983;
3. Count Three: a policy, practice, procedure and custom of Fourth and Fourteenth Amendment violations under 42 U.S.C. § 1983;
4. Count Four: custom of improperly indemnifying and of conspiring to indemnify LAPD officers for punitive damages assessed against those officers by juries in civil rights cases under 42 U.S.C. § 1983;
5. Count Five: declaratory relief that there is a custom, pattern and practice of Fourth and Fourteenth Amendment violations;
6. Count Six: Injunction enjoining Defendants from engaging in the wrongful conduct described;
7. Count Seven: Racketeer Influenced and Corrupt Organizations Act (RICO), is violations; and
8. Count Eight: conspiracy to violate Racketeer Influenced and Corrupt Organizations Act (RICO).
B. Procedural Summary
On April 4, 2001, Plaintiff filed the Complaint.
On April 5, 2001, this Court issued its Standing Order with Regard to Newly Assigned Cases.
On April 10, 2001 Plaintiff filed an Amended Complaint.
On July 30, 2001, Police Officers Trevino and De Armond filed Motion to Dismiss Portions of the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is set for hearing on October 1, 2001.
On July 30, 2001, City Attorney defendants James K. Hahn and Thomas Hokinson's filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is set for hearing on October 1, 2001.
On July 30, 2001, Commissioner defendant Gerald Chaleff, hereinafter referred to as "Chaleff", filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is currently before this Court.
On July 30, 2001, Councilmember defendants' Michael Feuer and Joel Wach's filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is currently before this Court.
On July 30, 2001, Daryl F. Gates filed a Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is currently before this Court.
On August 10, 2001, Bernard C. Parks filed a Notice of Motion and Motion to Dismiss portions of the Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, which is set for hearing on October 1, 2001.
On August 10, 2001, defendant Helem Dunkin files a Notice of Joinder in defendant police officers Trevino and De Armond's Motion to Dismiss Portions of the Amended Complaint.
II. Discussion
A. Standard
In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12 (b)(6) the Court must assume that plaintiffs' allegations are true, and must construe plaintiffs' complaint in the light most favorable to plaintiffs. United States v. City of Redwood City, 640 F.2d 963, 967 (9th Cir. 1981). Moreover, even if the face of the pleadings indicates that recovery is unlikely, the plaintiff is still entitled to offer evidence in support of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Redwood City, 640 F.2d at 967. Finally, a court may not dismiss complaints pursuant to Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980).
Generally, orders granting motions to dismiss are without prejudice unless "allegations of other facts consistent with the challenged pleading could not possibly cure the defect." Schreiber Dist. v. Serv-Well Furniture, 806 F.2d 1393, 1401 (9th Cir. 1986).
B. Chaleff's Request for Judicial Notice
Chaleff asks this Court to take judicial notice of the relevant portions of the Charter of the City of Los Angeles, sections 70(b), 76, 77, 78 and 206(a)(2), which are attached to the Request for Judicial Notice.
A court must take judicial notice if a party requests it and supplies the court with the requisite information. Fed.R.Evid. 201(d). "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). This Court may take judicial notice of facts outside the pleadings without converting the motion to one for summary judgment. See Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (citing Sears, Roebuck Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956)).
A court may take judicial notice of "records and reports of administrative bodies." Mack, 798 F.2d at 1282 (citing Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953)). In addition, this Court may take judicial notice of documents that are public records and capable of accurate and ready confirmation by sources that cannot reasonably be questioned. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (courts may take judicial notice of matters of public record outside the pleadings).
In light of the above, this Court takes judicial notice of the aforementioned document and grants Chaleff's request.
C. Analysis
In this motion, Defendant Chaleff seeks to dismiss all Counts, One through Eight. Defendant Chaleff is a former member of the City of Los Angeles Board of Police Commissioners, hereinafter referred to as "Boardmembers."
Because Plaintiff refers to his claims as "counts," this Court will do so also to prevent confusion.
1. Dismissal of Count One is warranted
In Count One, Plaintiff brings a claim under 42 U.S.C. § 1983 alleging that Chaleff violated Plaintiff's Fourth and Fourteenth Amendment rights. Chaleff contends that dismissal of this count is warranted because Plaintiff fails to establish that Chaleff had direct personal participation in the alleged violations or that he was a supervisor of the LAPD officers in his individual capacity.
This Court agrees with Chaleff that Plaintiff cannot base Chaleff's liability upon direct participation in the alleged violation of Plaintiff's constitutional rights. Plaintiff offers no allegations that Chaleff was at the scene of his arrest or that he directed or ordered his arrest. Thus, allegations of Chaleff's liability must be based upon supervisorial liability.
Supervisory liability of an individual defendant turns on the right of legal control over the direct tortfeasor. "To succeed on a claim of supervisory liability, plaintiff must establish that defendant was directly responsible for overseeing the performance of the alleged wrongdoer." Hernandez v. Gates, 100 F. Supp.2d 1209, 1218 (C.D. Cal. 2000). Because there is no respondeat superior liability under Section 1983, a supervisorial official is only liable for constitutional violations of his or her subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). For supervisorial liability to attach in the absence of direct participation, the plaintiff must establish a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). Liability is imposed upon a supervisory official for his or her own culpable action or inaction in the training, supervision. or control of subordinates, for acquiescence in the constitutional deprivations of which the complaint is made, or for conduct that showed a reckless or callous indifference to the rights of others. See Larez v. City of Los Angles, 946 F.2d 630, 646 (9th Cir. 1991).
This Court agrees with Chaleff that Plaintiff cannot establish supervisorial liability because Chaleff is not individually or directly responsible for overseeing the performance of the Officers. The Charter of the City of Los Angeles states that each board "shall exercise the powers conferred upon it by the Charter by order or resolution adopted by a majority of its members." Charter of the City of Los Angeles, § 76(c) (emphasis added). The Charter does not grant Board members any authority to act in their individual capacity. The supervisory authority of the Board lies only in their power to act as a majority. Thus, former individual Board member Chaleff does not have the legal power or duty to supervise LAPD officers because the Charter of the City of Los Angeles does not confer such power and duty upon him.
The question then becomes whether the supervisory authority conferred upon the Board as a whole is sufficient to hold individual members liable in their individual capacities. The Sixth Circuit addressed this issue in Doe v. Clairborne County, 103 F.3d 495, 512 (6th Cir. 1996) and concluded that where board members have no individual supervisory responsibility and are "unable to act, in a legal sense, except as constituent members of a board majority", individual capacity claims do not lie against them as a matter of law. This decision is consistent with the Ninth Circuit's pronouncement that allegations of group liability or "team effort" are simply insufficient theories upon which to impose individual capacity liability. See Chuman v. Wright, 76 F.3d 292, 294-5 (9th Cir. 1996). Further, the holding in Doe has never been questioned or criticized by another court and has recently been followed by a New York district court. See Murphy v. New York Racing Ass'n, 76 F. Supp.2d 489 (S.D.N.Y. 1999) (where statutory and by-law provisions governing New York Racing Association's Board of Trustees imposed duties only on the Trustees as a governing body, not on individual trustees, individual capacity claim did not lie against individual board members for their failure to prevent or remedy the alleged constitutional violations of their supervisees).
Plaintiff argues that the case of Heller v. Bushey, 759 F.2d 1371 (9th Cir. 1985) makes this defendant an "appropriate defendant." However, nothing in Heller contradicts the principles enunciated above and this Court's determination. In Heller, the Ninth Circuit repeated the principle that to establish individual liability, the plaintiff must demonstrate an "affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy . . . showing their authorization or approval of such misconduct." Id. at 1375. However, in Heller, the court did not need to address whether the individual members of the Board of Police Commissioners can be held individually liable for their supervisory authority which they exercise as a whole. It found that the district court erred in granting summary judgment to the individual defendants on the basis that only those individuals who were in office at the time of the trial was a suitable defendant with regard to allegations of individual liability. See id. at 1375.
In sum, because Chaleff does not individually have the power or duty to supervise LAPD officers, he cannot be individually liable. Thus, this Court finds that dismissal of this count is warranted with prejudice.
2. Dismissal of Count Two is warranted
In Count Two, Plaintiff alleges that Chaleff conspired to violate Plaintiff's Fourth and Fourteenth Amendment rights. Chaleff contends that dismissal of this count is warranted because Plaintiff fails to establish that Chaleff had direct personal participation in the alleged violations or that he was a supervisor of the LAPD officers in his individual capacity.
As explained above, "Count One" fails to state an individual capacity claim against Chaleff. It follows that the conspiracy claim contained in "Count Two" must also fail for the same reason. In his opposition. Plaintiff does not address Chaleff's argument and offers no additional arguments in support of this count. Thus, this Court finds that dismissal of this count is warranted with prejudice and without leave to amend.
3. Dismissal of Count Three is warranted
In Count Three, Plaintiff alleges that Chaleff is liable in his official capacity based on a Monell theory — that the LAPD had a policy and custom of Fourth and Fourteenth Amendment violations by LAPD officers.
This Court agrees with Chaleff. Plaintiff plainly states in the Amended Complaint that the Defendant Boardmembers "all of whom presently are not in office are sued only in their individual capacities." (See FAC, ¶ 4.) In addition, Chaleff no longer has any official capacity with the City of Los Angeles Board of Police Commissioners, and thus cannot be sued on a Monell theory. In his opposition. Plaintiff does not address Chaleff's argument and offers no additional arguments in support of this count. Thus, this Court finds that dismissal of this count is warranted with prejudice and without leave to amend.
4. Dismissal of Count Four is warranted
In Count Four, Plaintiff alleges that Chaleff is liable based on a Monell theory predicated upon allegations that the City Attorney defendants and the City Council Member defendants had a custom of improperly indemnifying LAPD officers and that the alleged custom was a moving force that caused the violation of Plaintiff's civil rights. Chaleff contends that the Section 1983 official capacity claims should be dismissed because they (Boardmembers) "are sued only in their individual capacities." (FAC at ¶ 4).
As explained above, "Count Three" fails because Chaleff is sued only in his individual capacity and no longer has any official capacity with the City of Los Angeles Board of Police Commissioners, and thus cannot be sued on a Monell theory. It follows that "Count Four" must also fail for the same reason. Thus, this Court finds that dismissal of this count is warranted with prejudice and without leave to amend.
5. Dismissal of Counts Five and Six is warranted
In the Fifth and Sixth counts, Plaintiff seeks declaratory and injunctive relief, respectively. Chaleff seeks to dismiss these counts on the basis that Plaintiff lacks standing.
This Court agrees with Chaleff that dismissal of these counts is warranted. First, because this Court has found that Plaintiff fails to state any claim against Chaleff for violation of Plaintiff's civil rights, no basis exists for these equitable relief claims against Chaleff. In addition. this Court finds that these claims for declaratory and injunctive relief are moot. A moot action is one where the parties lack a legally cognizable interest in the outcome. See Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985). To maintain an action for equitable relief, a plaintiff must allege a threat of future injury which is both "real and immediate." See City of Los Angeles v. Lyons, 461 U.S. 95, 1001, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). A plaintiff must demonstrate that a "credible threat" exists that he will again be subject to the specific injury for which he seeks declaratory or injunctive relief. See Kolender v. Lawson, 461 U.S. 353, 355 n. 3, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). In following the above principles, the Ninth Circuit has held that a plaintiff must show a likelihood that he will be affected again by that which he challenges. See Sample, 771 F.2d at 1342. The burden for showing a likelihood of recurrence is firmly on the plaintiff. See id.
Here, Plaintiff cannot credibly allege that he in particular faces a realistic threat of future constitutional violations by LAPD officers. Plaintiff's allegation of a past violation is insufficient. See O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Similarly, Plaintiff's general allegations of a recurring violation are conclusory and fall short of his burden to establish a "credible threat" of future injury that is both "real and immediate." As the Ninth Circuit has stated, "no matter how important the issue of how likely that a similar action will be brought, a court is without jurisdiction if there is not a sufficient likelihood of recurrence with respect to the party now before it." Sample, 771 F.2d at 1342. Accordingly, this Court dismisses Counts Five and Six for declaratory and injunctive relief with prejudice and without leave to amend.
6. Dismissal of Count Seven is warranted
In Count Seven, Plaintiff alleges that the Chaleff, along with the other defendants, violated the RICO statute, 18 U.S.C. § 1962. To establish a violation under Section 1962(c), a plaintiff must prove "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 279, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985).
a. Plaintiff does not plead any predicate acts
Chaleff first contends that Plaintiff does not have standing under RICO because he cannot plead any "predicate acts" sufficient to establish a RICO violation. A person can bring an action under RICO when he has been "injured in his business or property." See 18 U.S.C § 1964(c). The RICO Act sets forth a specific list of criminal "predicate acts" that may constitute "racketeering activity" for purposes of RICO. See id. at § 1961(1). Here, no such predicate act is alleged in the Amended Complaint. Plaintiff alleges that he was wrongfully stopped, detained, searched and arrested and the false criminal charges were made against him. Such conduct does not, and cannot, fall within the list set forth in Section 1961(1). Indeed, the Seventh Circuit has states that civil rights and constitutional law violations are not predicate acts under RICO. See Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir. 1990).
In addition, Chaleff argues, the alleged conduct is not an injury to Plaintiff's business or property. A limitation to the RICO statute is that personal injuries are not compensable. See Oscar v. University Students Co-Op. Ass'n, 965 F.2d 783, 785 (9th Cir. 1992). "RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff." See id. at 786. As such, dismissal of Count Seven with prejudice and without leave to amend is warranted on these grounds.
b. Plaintiff alleges he suffered injury to his business
Chaleff argues that the alleged conduct is not an injury to Plaintiff's business or property. A person can bring an action under RICO when he has been "injured in his business or property." See 18 U.S.C. § 1964 (c). A limitation to the RICO statute is that personal injuries are not compensable. See Oscar v. University Students Co-Op Ass'n, 965 F.2d 783, 785 (9th Cir. 1992). "RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff." See id. At 786.
Plaintiff responds that he is suing for the loss of employment and employment opportunities and that these are injuries to his business and compensable under RICO. In support of his claim, Plaintiff cites cases wherein the court has found that loss of employment and denial of employment benefits constitutes cognizable injuries to business for purposes of RICO, so long as the injuries were proximately caused by a pattern of racketeering activity. Construing the allegations in a more favorable light to Plaintiff, this Court can find that Plaintiff has sufficiently pled an injury to his business; however, his claim fails for the reasons explained herein.
c. Plaintiff does not plead any facts to show Chaleff participated in the "operation or management" of a "racketeering enterprise
Chaleff further argues that the Amended Complaint fails to allege facts to show that Chaleff participated in the operation or management of a racketeering enterprise. Section 1962(c) provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
Because Plaintiff has not, and cannot consistently, plead facts under Section 1962(c), dismissal of this count is warranted on this basis with prejudice and without leave to amend.
d. Plaintiff does not allege a "pattern of racketeering activity"
Chaleff also asserts that Plaintiff does not allege the requisite "pattern of racketeering activity." Again, this Court agrees. A "pattern or racketeering activity" "requires at least two acts of racketeering activity, . . . the last of which occurred within ten years . . . after the commission of a prior act of racketeering activity." 18 U.S.C. § 1961 (5). Here, Plaintiff only asserts a single incident. Not only does this single incident not constitute a "predicate activity," it does not constitute a "pattern of racketeering activity." As such, dismissal of the RICO count with prejudice and without leave to amend is farther warranted on this basis
7. Dismissal of Count Eight is warranted
Plaintiff alleges that Chaleff conspired to violate RICO. Section 1962(d) provides that "[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b)or (c) of this section." 18 U.S.C. § 1962 (d). The Ninth Circuit has defined a conspiracy to violate RICO as "an agreement to conduct or participate in the affairs of an enterprise and an agreement to the commission of at least two predicate acts." Neibel v. Trans World Assurance Co., 108 F.3d 1123, 1128 (9th Cir. 1997) (quoting Baumer v. Pachl, 8 F.3d 1341, 1346 (9th Cir. 1993)). Conspiracy to violate RICO requires a showing that the defendant was aware of the essential nature and scope of the enterprise and intended to participate in it. Baumer, 8 F.3d at 1346. Conclusory allegations that defendant conspired with each other to violate RICO are insufficient. See id.
This Court agreed with Chaleff that dismissal of this count is proper. First, as explained above, since the Plaintiff has not alleged a RICO violation by pointing out a "predicate act", it follows that he cannot establish a RICO conspiracy. In any event, Plaintiff does not allege any facts to show that Chaleff agreed to participate in an enterprise and to the commission of at least two predicate acts. In short, dismissal of this count with prejudice and without leave to amend is warranted.
8. Self Recusal by this Court is not warranted
Plaintiff argues as follows:
Because plaintiff has learned that the court, Judge Tevrizian, has close and personal relationships with both the new Mayor, James K. Hahn, and the new Mayor's mayoral campaign chairman. William Wardlaw, the court should not rule on any matters involving Hahn, and should recuse itself from this case.
Plaintiff apparently bases this argument upon a private telephone conversation in which this Court was engaged and which was overheard by his attorney, Mr. Yagman, while Mr. Yagman was attending a settlement conference in this Court on another unrelated case. (See Yagman Decl., ¶ 3.) Mr. Yagman speculates that this Court was speaking with Mr. Wardlaw about Mayor James Hahn. (See id.)
To end Mr. Yagman's speculation, this Court provides that it was in fact speaking with Mr. Wardlaw and that part of that conversation concerned congratulating Mr. Wardlaw for the election of Mayor Hahn. Plaintiff and his counsel's suggestion that this requires this Court to recuse itself is frivolous and meritless. This Court finds absolutely no basis to voluntarily recuse itself from this case. In addition, both William Wardlaw and his spouse Kim Wardlaw live in the same neighborhood as this Court. Kim Wardlaw is a former member of this Court and is presently serving as a Justice of the Ninth Circuit Court of Appeals. The Wardlaw's are known to all members of the Central District of California.
III. Conclusion
In light of the foregoing, this Court grants with prejudice and without leave to amend Defendant Gerald Chaleff's Motion to Dismiss the Amended Complaint For Failure to State a Claim Upon Which Relief Can Be Granted.
IT IS SO ORDERED.