Opinion
No. C 04-3202 CW.
October 27, 2005
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
Defendants City of Petaluma, Officer Mike Pierre and Officer John Antonio (collectively, City Defendants) and County of Sonoma and Deputy Sheriffs Dave Tait, John Buergler, Mike Middleton, Shawn Murphy and Mittenthal (collectively, County Defendants) separately move to dismiss pro se Plaintiff David William Pimentel's first amended complaint (FAC) under Federal Rules of Civil Procedure 12(b)(6) and Rule 12(e). Plaintiff has not filed an opposition to the motions.
A copy of the Court's most recent order sent to Plaintiff was returned as undeliverable. Plaintiff has not filed a notice of change in address, as required by Civil Local Rule 3-11(a).
Having considered the papers filed by Defendants, the Court grants Defendants' motions to dismiss with prejudice.
BACKGROUND
Plaintiff's claims arise from an August 6, 2002 incident in which, according to the FAC, Plaintiff was assaulted with a taser deployment gun by Officer Pierre and with pepper spray by Deputy Sheriffs Tait and Buergler while hunting wild game on unposted property.Plaintiff's original complaint listed nine causes of action, each referring to many different potential claims, generally brought against all Defendants. The County and City Defendants moved separately to dismiss on grounds, among others, that the federal claims were barred by the statute of limitations and failed properly to allege municipal liability under Monell v. New York Dep't of Soc. Serv., 436 U.S. 658, 690-91 (1978), and that, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994) andSusag v. City of Lake Forrest, 94 Cal. App. 4th 1401 (2002), the Court lacked jurisdiction to consider either the federal or State claims. Defendants also moved to dismiss for failure to meet the requirements of Federal Rule of Civil Procedure 8(e). On these bases, the Court dismissed the complaint with leave to amend. May 23, 2005 Order Granting Defendants' Motions to Dismiss. In its order, the Court set forth specific instructions for Plaintiff to follow in any FAC. The relevant instructions are detailed in the discussion section below.
Plaintiff filed his FAC on June 27, 2005. The FAC includes two claims under 42 U.S.C. § 1983 for violation of his rights under the Fourth and Fourteenth Amendments. The first claim is brought against the City Defendants, and the second claim against the County Defendants.
LEGAL STANDARD
A motion to dismiss for failure to state a claim will be denied unless it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."Falkowski v. Imation Corp., 309 F.3d 1123, 1132 (9th Cir. 2002), citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." Fed.R.Civ.P. 8(e). These rules "do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds on which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
When granting a motion to dismiss, a court is generally required to grant a plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile.Cook, Perkiss Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment would be futile, a court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). Leave to amend should be liberally granted, but an amended complaint cannot allege facts inconsistent with the challenged pleading. Id. at 296-97.
DISCUSSION
I. Heck Bar
The County Defendants move to dismiss Plaintiff's claim against them on the grounds that the individual County Defendants' use of pepper spray against him was not a separate and distinct incident from the events which led to Plaintiff's conviction, and thus Plaintiff's complaint about it is barred by Heck.
In its May 23, 2005 order, the Court explained that Plaintiff could not bring any claim of excessive force allegedly used against him during the course of the events on which his conviction is based. The Court ordered,
Plaintiff was convicted of felony obstruction of an officer with violence, felony possession of a firearm and felony battery on an officer. May 23, 2005 Order at 12.
If Plaintiff includes a claim of excessive force in his amended complaint, he must specify whether his claim arises out of events occurring before or after the events on which his conviction is based, or both. The factual basis for such claims of excessive force must be set forth separately.
May 23, 2005 Order at 13.
Plaintiff alleges that as he was leaving the property where he had been hunting, he was "approached by Sheriff Deputies David Tait and John Buergler and was violently sprayed with pepper spray causing plaintiff to lose his vision and was pushed to the ground and suffered a fracture in the scapula." FAC ¶ 44. He also alleges, "The matters [in the FAC] arise out of events that occurred before and after the events on which the conviction of the plaintiff is based." FAC ¶ 5. Later, he states, "The assaults with pepper spray made upon plaintiff's person was done so by Deputy Sheriff's John Buergler and Dave Tait before the events from which plaintiff's conviction is based." FAC ¶ 48.
These broad and conclusory paragraphs fail to fulfill the Court's requirements. Plaintiff fails to differentiate the events giving rise to his conviction from the events giving rise to his claims. For this reason, the Court grants the County Defendants' motion to dismiss the claim against them. Because the Court previously granted Plaintiff leave to amend and he failed to follow its instructions for remedying this deficiency, and because Plaintiff has not opposed the County Defendants' motion, this dismissal is with prejudice.
Plaintiff's claim against the City Defendants suffers from the same defect; he has failed to follow the Court's instruction to differentiate the events giving rise to this particular claim from the events on which his conviction is based, and he has not opposed the City Defendants' motion to dismiss. Therefore, Plaintiff's claim against the City Defendants is also dismissed with prejudice.
II. Failure to State a Claim Against Individual Defendants
The County Defendants move to dismiss Plaintiff's claim against, among others, Deputy Sheriffs Middleton, Murphy and Mittenthal on the grounds that the FAC fails to state a claim for excessive force against them. The City Defendants similarly move to dismiss Plaintiff's claim against Officer Antonio.
In its May 23, 2005 order, the Court instructed Plaintiff to include in his FAC "separate counts for each violation of § 1983 by each Defendant or group of similarly situated Defendants." Instead, Plaintiff appears to bring one claim against all the City Defendants and one claim against all of the County Defendants, even though not all individuals within each group appear to be similarly situated. For instance, the FAC's first claim alleges only that Deputies Middleton, Murphy and Mittenthal were "present" when Plaintiff was shot with a taser by Officer Pierre. FAC ¶ 34. The second claim alleges that the Sonoma County Sheriff permitted Deputy Middleton to "possess and use" pepper spray. FAC ¶ 39. The only allegation against Officer Antonio is that he, like Deputies Middleton, Murphy and Mittenthal, was present when Plaintiff was shot with a taser by Officer Pierre.
Accordingly, Plaintiff's claims against Deputies Middleton, Murphy and Mittenthal and Officer Antonio are dismissed on this ground, in addition to the Heck issue described in Section I. Because the Court previously granted Plaintiff leave to amend and he failed to follow its instructions for remedying this deficiency, and because Plaintiff has not opposed the County Defendants' motion, this dismissal is with prejudice.
III. Monell Claims
The County Defendants move to dismiss any claims against the County of Sonoma because Plaintiff has failed to allege the specific official policy, custom or usage that gave rise to the County's liability under Monell.
In its May 23 order, the Court instructed Plaintiff, "For each § 1983 count against the City or the County, Plaintiff must allege the specific official policy, custom or usage that was followed." May 23, 2005 Order at 9. Plaintiff did not do so, instead alleging generally that all of the individual Defendants acted "pursuant to the official policy of defendants [County of Sonoma and City of Petaluma] in the use of pepper spray, taser and stun gun." FAC ¶¶ 27, 28. Moreover, the municipal Defendants cannot be said to be similarly situated to the individual Defendants, and therefore the May 23 order required Plaintiff to list any claim against Defendants County of Sonoma or City of Petaluma separately. Therefore, the Court grants the County Defendants' motion to dismiss the Monell claims against the County of Sonoma, and the Monell claim against the City of Petaluma is likewise dismissed. Because Plaintiff was already granted the opportunity to amend his complaint to bring claims specifically against the municipal Defendants, and he did not do so, and because he has not opposed Defendants' motions to dismiss, this dismissal is with prejudice.
CONCLUSION
For the foregoing reasons, the City Defendants' and County Defendants' motions to dismiss are GRANTED (Docket Nos. 38 and 39) with prejudice.
In his FAC, Plaintiff also named for the first time as Defendants Sonoma County Sheriff Bill Cogbill; Chief of the Petaluma Police Department; Petaluma Police Department; and Sonoma County Sheriff's Department. There is no evidence in the record that any of these individuals or entities have been served, or that they have waived service, and none has appeared in this case. However, the unserved Defendants are similarly situated to moving Defendants, and therefore the Court dismisses with prejudice the remaining claims against them. See Silverton v. Dep't of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (court may sua sponte dismiss action as to defendants who have not moved to dismiss, where such defendants are in a position similar to that of moving defendants or where claims against such defendants are integrally related).
Judgement shall enter accordingly. All parties shall bear their own costs. The Clerk shall close the case.
IT IS SO ORDERED.