Opinion
CV 01-2066 FMC (Ex)
July 24, 2001
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS
In this action, Plaintiff has asserted claims against a number of Defendants, including the current and former Chiefs of Police of the Los Angeles Police Department ("LAPD"), current and former members of the Los Angeles City Council "the Council Members"), current and former members of the Los Angeles Board of Police Commissioners ("the Commissioners"), current and former Los Angeles City Attorneys ("the City Attorneys"), two LAPD officers, and 300 John Doe Defendants. This matter is before the Court on eight Motions to Dismiss, all for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6): (1) former Chief of Police Daryl Gates' Motion to Dismiss filed on April 2, 2001 (docket #8); (2) former Chief of Police Willie L. Williams' Motion to Dismiss filed on May 16, 2001 (docket #40); (3) current Chief of Police Bernard C. Parks' Motion to Dismiss filed on April 10, 2001 (docket #11); (4) the current Commissioners' Motion to Dismiss filed on April 27, 2001 (docket #22); (5) the Council Members' Motion to Dismiss filed on May 16, 2001 (docket #37); (6) the former Commissioners' Motion to Dismiss filed on May 16, 2001 (docket #34); (7) the City Attorneys' Motion to Dismiss filed on May 16, 2001 (docket #31); and (8) Officer Flores' and Officer Vintimilla's Motion to Dismiss filed on April 23, 2001 (docket #15). For the reasons and in the manner stated herein, Defendants' Motions are hereby GRANTED IN PART AND DENIED IN PART.
The Commissioners, Chief Parks, and the LAPD officers are collectively referred to herein as "the LAPD Defendants."
I. Background
This action arises out of Plaintiff's October 5, 1999, arrest and subsequent incarceration. As set forth in the Complaint, all of Plaintiff's claims are asserted against all Defendants.
Plaintiff's first four causes of action are asserted under 42 U.S.C. § 1983. Plaintiff's first cause of action is, as deemed by Plaintiff, a "simple" § 1983 action. It alleges that Plaintiff's arrest and incarceration were in violation of the Fourth and Fourteenth Amendments to the United States Constitution.
Plaintiff's second cause of action asserts a § 1983 conspiracy claim, and alleges that the LAPD officers and the other Defendants in this action conspired to violate Plaintiff's civil rights.
Plaintiffs third cause of action asserts a § 1983 Monell claim, and alleges that the Defendants had a policy, custom, or practice of Fourth and Fourteenth Amendment violations, including planting evidence, coercing confessions, and committing and/or suborning perjury.
This claim arises under Monell v. Dep't. of Soc. Services of the City of New York, 436 U.S. 658, 694, 98, S.Ct. 2018, 56 L.Ed.2d 611 (1977), which held that when the execution of a government's policy or custom results in the injury to an individual, that government, as an entity, is liable for the injury under § 1983.
Plaintiff's fourth cause of action asserts a similar § 1983 Monell claim, and alleges that Defendants have conspired with one another to adopt a policy of improperly indemnifying LAPD officers for awards of punitive damages made against them in unrelated actions. This practice is alleged to be a "moving force" behind the unconstitutional actions at issue in this case.
See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099 (1985) (holding that "a governmental entity is liable under § 1983 only when the entity itself is a `moving force' behind the constitutional violation).
In sum, Plaintiff's theory of liability under his fourth cause of action may be outlined as follows: The City Attorney Defendants agreed and understood among themselves and the City Council Members to ensure that punitive damages awarded against LAPD officers in unrelated cases would be paid by the City. In other words, the City Attorney Defendants understood that it was the wish of the City Council Member Defendants that the City Attorneys recommend that the City pay the awards. The City Attorneys complied with the Council Members' wishes, ignoring their own conflicts of interest and, during the course of litigation, coerced the cooperation of the individual police officers against whom punitive damages were sought. This practice enforced a "code of silence" among the officers involved in civil rights litigation and allowed the City Council Members to seek qualified immunity for their actions because they were taken not in bad faith but "on advice of counsel." See Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) (holding that a plaintiff must establish bad faith as a necessary element in seeking damages against city council members based on their indemnification of punitive damages awards). The end result of this practice was to foster an environment that encouraged the Fourth and Fourteenth Amendment violations at issue in this action.
Plaintiff's fifth and sixth causes of action are not substantive causes of action at all; rather, these claims seek declaratory and injunctive relief as to the conduct that forms the basis for the first four causes of action.
Plaintiff's seventh and eighth causes of action are asserted pursuant to the Racketeer Influenced and Corrupt Practices Act ("RICO"), 18 U.S.C. § 1961 et seq. Plaintiff alleges both a substantive RICO violation and a violation of RICO's conspiracy prohibition. In an attempt to meet RICO's requirement that he suffer injury to his "business or property" by virtue of the RICO violation, Plaintiff alleges that he lost employment, wages, employment opportunities, and diminished employment prospects because of his arrest and incarceration.
II. Standard for Dismissal
Defendants' Motions require the Court to determine whether Plaintiff's Complaint states claims upon which relief may be granted. See Fed R. Civ. P. 12(b)(6). The Court will not dismiss Plaintiff's claims for relief unless he cannot prove any set of facts in support of his claims that would entitle him to relief. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). In limiting its inquiry to the content of the Complaint, the Court must take the allegations of material fact as true and construe them in the light most favorable to Plaintiff. See Western Reserve Oil Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir. 1985). However, the Court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot be reasonably drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 755 (9th Cir. 1994).
III. Plaintiff's First Cause of Action
Initially, the Court notes that Plaintiff has failed to allege the basis upon which he claims his equal protection rights were violated. Given Plaintiff's references in opposition to the present motion to a conspiracy against "dark-skinned men", it appears that Plaintiff is claiming that he was denied equal protection of the laws based on his minority race. Plaintiff has failed to allege this essential element, see Cerrato v. San Francisco Community College District, 26 F.3d 968 (9th Cir. 1994) ("To establish a violation of § 1983's equal protection guarantee, the plaintiff must show that the defendants intentionally discriminated against him on the basis of his race."), and therefore, the Court HEREBY DISMISSES WITHOUT PREJUDICE all Plaintiff's claims asserted under the Fourteenth Amendment.
Defendants argue that Plaintiff has failed to state with sufficient particularity the material facts upon which he bases his claims. To make out a cause of action under § 1983, a plaintiff must plead that the defendants, (1) acting under color of state law, (2) deprived him of rights secured by the Constitution or federal statutes. Ortez v. Washington County, 88 F.3d 804, 810 (9th Cir. 1996). Additionally, supervisors may be individually liable for the unconstitutional actions of their subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
At the outset, the Court notes its agreement that the Complaint is not a model of clarity; nevertheless, in some instances, Plaintiff's allegations are sufficient to state a claim upon which relief can be granted.
Plaintiff has undeniably stated a claim against the LAPD officers in their individual capacities. Indeed, Defendants do not move for dismissal as to this claim. However, Plaintiff has not stated a claim against the LAPD officers in their official capacities, and has conceded as much in his opposition to the present Motions.
Plaintiff has not stated a claim against former Chiefs of Police Gates or Williams in their individual capacities. Plaintiff does not allege that the former Chiefs were present at his arrest or that they controlled actions of the LAPD officers who arrested him. See Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 1999) (noting that, in analyzing § 1983 claims against individuals who are not government officials, the Ninth Circuit starts with the presumption that private parties do not act under color of state law); Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir. 1985) (holding that in order to assert a cause of action against a private individual present at police officers' allegedly unconstitutional search, a plaintiff would have to establish that the individual controlled the investigation or directed that the search be conducted).
Plaintiff has not sued former Chief of Police Gates or Williams in their official capacities.
With respect to the Police Commissioners, Plaintiff has not stated a claim even though Plaintiff has alleged that the Commissioners failed to adequately train, supervise, and properly discipline the LAPD officers who are alleged to have violated his constitutional rights. At oral argument counsel for the Commissioners cited to Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), and argued that because the Commissioners were not directly responsible for supervising the LAPD officers, no claim was stated against them. In Taylor, the Ninth Circuit held that the Nevada State Attorney General was not liable for alleged violations of a state prisoner's civil rights based on the actions of a deputy Attorney General's actions in prosecuting the prisoner in the absence of a showing that the Attorney General participated in or had knowledge of any alleged misconduct on the part of the deputy. Therefore, absent allegations that the Commissioners knew of the allegedly unconstitutional actions of Officer Flores and Officer Vintimilla on October 5, 1999, Plaintiff does not state an individual capacity claim against the Commissioners based on supervisory liability under § 1983.
Defendants also argue, unpersuasively, that the Police Commissioners and the City Council Members cannot be held individually liable under § 1983 because they may act only in a collective manner and not an individual manner. Defendants cite Chuman v. Wright, 76 F.3d 292 (9th Cir. 1996), in support of this proposition. In Chuman, the Ninth Circuit held that it was reversible error for a district court to instruct the jury that a individual police officer could be found liable under § 1983 for his "team effort" in executing a search warrant even if the individual officer was himself guilty of no constitutional violation. The Ninth Circuit concluded that such an approach provided improper alternative grounds for § 1983 liability, and that it impermissibly allowed the jury to "lump all the defendants together, rather than require it to base each individual's liability on its own conduct." Id.
In Navarro, the Ninth Circuit implicitly rejected this approach with regard to the City Council Members. The Council Members' actions in voting to indemnify police officers are individual actions, even if their actions may have a collective result. The same is true with regard to the Police Commissioners.
Plaintiff has alleged a broad conspiracy in which all Defendants have understood that their individual actions contributed to a larger plan. Plaintiff asserts a claim against each individual Defendant based on his or her own actions, and the concerns expressed in Chuman are therefore inapplicable.
Plaintiff has not, however, stated a cause of action against Chief Parks or the Commissioners in their official capacities. See Taylor, 880 F.2d at 1045 ("There is no respondeat superior liability under section 1983.").
For the same reason, Plaintiff has failed to state a claim against the Cib Attorneys and the City Council Members in their official capacities. Because there is no respondeat liability under § 1983, a "simple" § 1983 claim cannot be asserted against an individual in his or her official capacity.
Plaintiff has stated a claim against the City Council Members and the City Attorneys in their individual capacities. The Ninth Circuit has previously addressed the issue of whether officials could be subject to individual capacity § 1983 claims based on their actions in voting to indemnify police officers' punitive damages awards, and has held that such a theory is cognizable under § 1983. See Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) (holding that county supervisors are not entitled to summary judgment on the basis of qualified immunity where there is an issue of fact as to whether they acted in bad faith in voting to indemnify police officers subject to awards of punitive damages); Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000) (holding that summary judgment in favor of city council members should have been granted as to § 1983 claim based on council members' past indemnification of punitive damages awards, and relying on evidence that established that the city council's actions were taken in good faith); see also Hawkins v. Baca, 114 F. Supp.2d 987 (C.D. Cal. 2000) (holding that plaintiff sufficiently alleged that county supervisors acted in bad faith).
Recently, another judge of this Court held that, in light of Navarro, and based on allegations that are identical in substance to the allegations in this action, Plaintiff had stated a claim against City Council Members and City Attorneys in their individual capacities. See Moss v. Gates, No. CV-00-07164 GAF (AJWx), 2001 WL 739806 (C.D. Cal. 2001) (Feess, J.). This Court agrees with Judge Feess' three conclusions regarding the effect of Navarro. Id. at *3 First, Plaintiff has stated an individual capacity claim against the City Council Members and the City Attorneys under § 1983 based on his indemnification theory. Second, the alleged violations Plaintiff's constitutional rights cannot be presumed naturally to flow from the conduct of which he complains; rather, at the summary judgment stage, Plaintiff will be required to establish a sufficient causal nexus between a policy of indemnification and constitutional violations by police officers. Finally, this Court agrees with Judge Feess' observation that a case relied upon by the court in Navarro, Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996) ("Trevino II"), establishes the temporal boundaries regarding the availability for qualified immunity for indemnification claims. Trevino II clearly established that government officials could be held liable in their individual capacities for decisions to indemnify police officers' punitive damages awards when such decisions were made in bad faith. Therefore, City Council Members and City Attorneys are entitled to qualified immunity for indemnification decisions made before November 1, 1996, the date of the decision of Trevino II. See Cunningham v. Gates, 229 F.3d 1271 (2000) (holding that the council members defendants were entitled to qualified immunity for their pre-Trevino II indemnification decisions because before Trevino II, it was not clearly established that a policy of indemnifying punitive damage awards could violate constitutional rights).
Accordingly, as to Plaintiff's first cause of action, Defendants' Motions to Dismiss are hereby GRANTED IN PART AND DENIED IN PART. Plaintiffs first cause of action is DISMISSED WITH PREJUDICE as to all Defendants to the extent those Defendants are sued in their official capacities. Plaintiff's first cause of action is DISMISSED WITHOUT PREJUDICE as to former Police Chiefs Gates and Williams. Additionally, to the extent that Plaintiff's first cause of action is based on an alleged violation of the Fourteenth Amendment, it is DISMISSED WITHOUT PREJUDICE. Plaintiff is HEREBY GRANTED THIRTY DAYS' LEAVE TO AMEND the Complaint to properly allege all elements of his Fourteenth Amendment claim and to make sufficient factual allegations to support his first cause of action against the former Police Chiefs and the Police Commissioners.
IV. Plaintiff's Second Cause of Action
To assert a § 1983 conspiracy claim, a plaintiff must allege (1) the existence of an express or implied agreement among the defendants to deprive him of his constitutional rights, and (2) actual deprivation of those rights resulting from that agreement. Ting v. United States, 927 F.3d 1504, 1512 (9th Cir. 1991). To state a § 1983 conspiracy claim, the Complaint must include nonconclusory allegations regarding the intent of those alleged to be involved in the conspiracy. Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997). This standard is not intended to be difficult to meet. Id. Rather, it serves the limited purpose of enabling the district court to dismiss insubstantial suits prior to discovery and allowing a defendant to challenge the allegations on the basis of qualified immunity. Id.
A fair reading of the Complaint reveals that Plaintiff alleges that the City Council Members and the City Attorneys were involved in a conspiracy regarding the indemnification of police officers' punitive damages awards. The purpose of this conspiracy was to allow police officers (as well as the LAPD hierarchy) free reign to engage in unconstitutional law enforcement actions. For their part in the conspiracy, the LAPD, including, apparently, the LAPD officers in this action, and Chief Parks, agreed to engage in unconstitutional law enforcement actions. A fair reading of the Complaint also indicates that the Commissioners' role in the conspiracy was to act in a manner that would facilitate the agreements and understandings between the LAPD, the City Attorneys, and the City Council Members. The Commissioners are alleged to have failed to implement civilian oversight of the LAPD, and to have failed to investigate alleged constitutional violations, thereby facilitating the unconstitutional law enforcement actions.
These allegations are sufficient to state an individual capacity § 1983 claim against the City Council members, the City Attorneys, the Commissioners, the former Chiefs of Police, Chief Parks, and Officers Flores and Vintimilla. These theories of liability, however, are subject to far closer scrutiny at the summary judgment stage. Plaintiff's broad allegations — a far-reaching conspiracy that infects not only the LAPD ranks and its hierarchy, but also the City Attorney's office and the City Council chambers — must, as previously noted, be substantiated to withstand a defense motion for summary judgment. Plaintiff must prove not only the existence of such a conspiracy (which is itself a tall order), but must also prove that there is a sufficient causal nexus between the conspiracy and the alleged constitutional violations that are at issue in this action. Nevertheless, at the pleadings stage, Plaintiff's allegations are sufficient to state a § 1983 conspiracy claim as to all Defendants in their individual capacities.
claim as alleged against all former government officials may be barred by the statute of limitations. However, because Defendants have not argued that such claims are so barred, the Court does not address this issue at this time.
In a phrase that is as inartful and distasteful as it is admirable in its clarity, at least three circuits have described the summary judgment stage as the "put up or shut up" moment in a lawsuit, when the nonmoving party must show what evidence it has that would convince a trier of fact to accept its version of events. See, e.g., Weinstock v. Columbia University, 224 F.3d 33 (2d Cir. 2000); Schacht v. Wisconsin 24 Dep't of Corr., 175 F.3d 497 (7th Cir. 1999); Cox v. Kentucky Dep't of Transportation, 53 F.3d 146 (6th Cir. 1995).
Conversely, for the reasons stated in the previous section regarding Plaintiff's first cause of action, Plaintiff has not stated a cause of action against any Defendant in his or her official capacity as to his second cause of action.
Accordingly, as to Plaintiff's second cause of action, Defendants' Motions to Dismiss are hereby GRANTED IN PART AND DENIED IN PART. Plaintiffs second cause of action is DISMISSED WITH PREJUDICE as to all Defendants to the extent those Defendants are sued in their official capacities. Additionally, to the extent that Plaintiff's second cause of action is based on an alleged violation of the Fourteenth Amendment, it is DISMISSED WITHOUT PREJUDICE. Plaintiff is HEREBY GRANTED THIRTY DAYS' LEAVE TO AMEND the Complaint to properly allege all elements of his Fourteenth Amendment claim.
V. Plaintiff's Third and Fourth Causes of Action
Plaintiff's third and fourth causes of action are based on the City's policies, practices, or customs, and therefore arise under Monell v. Dep't of Soc. Services of the City of New York, 436 U.S. 658, 694, 98, S.Ct. 2018 (1977), which held that when the execution of a government's policy or custom results in injury to an individual, that government, as an entity, is liable for the injury under § 1983. The very nature of this claim precludes its assertion against any person in an individual capacity.
Therefore this claim is not properly alleged against the former Chiefs, who are sued in their individual capacities only.
Two policies are at issue. First, Plaintiff alleges that Defendants have a policy or custom of committing Fourth and Fourteenth Amendment violations, including planting evidence, coercing confessions, and committing perjury. Allegations regarding this policy appear to be directed primarily at the LAPD Defendants. I Second, Plaintiff alleges that the City Attorney Defendants have a policy of coercing, through various means, the cooperation of police officers involved in litigation, and of offering a "sham" recommendation to the City Council that police officers' punitive damages be indemnified by the City. This policy was carried out to enable the City Council Members to claim that they acted in good faith and on advice of council in voting to indemnify the police officers, thereby insulating themselves with the cloak of qualified immunity as outlined in Navarro. Allegations regarding this second policy appear to be directed primarily at the City Attorney and City Council Defendants.
Defendants argue that the City of Los Angeles should be substituted for the remaining officials who are sued in their official capacities. Although not cited by Defendants, a Ninth Circuit case provides support for their position. See Lewis v. Sacramento County, 98 F.3d 434 (9th Cir. 1996), reversed on other grounds, 523 U.S. 833 (1998). In Lewis, the Ninth Circuit affirmed a grant of summary judgment in favor of a police officer sued in his official capacity because the claim was more properly asserted against the governmental entity. Lewis, 98 F.3d at 446. The Lewis court cited Monell, noting that an official capacity claim is generally only another way of pleading an action against a governmental entity of which an officer is an agent, and that Monell held that the governmental entity could be sued directly. The Lewis court then quoted Kentucky v. Graham, 473 U.S. 159, 165 167 n. 14, 105 S.Ct. 3099 (1985): "There is no longer a need to bring official-capacity actions against local government officials [because] under Monell, . . . local government units can be sued directly." The Lewis court then concluded that claims against the police officer in his official capacity were subsumed within the claims against the government entity for whom he worked, and therefore the claims against the officer could be dismissed as redundant. Lewis, 83 F.3d at 446; see also Luke v. Abbott, 954 F. Supp. 202, 203 (C.D. Cal. 1997) (citing Monell and Kentucky v. Graham; holding that when both an officer in his official capacity and the local government entity are named in an action, the action against the officer is redundant and may be dismissed; and noting that if only an officer in his official capacity 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); accord, Fireman's Fund Insurance Company v. City of Lodi, 41 F. Supp.2d 1100, 1106 (E.D. Cal. 1999); Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996); Burton v. City of Philadelphia, 121 F. Supp.2d 810 (E.D. Pa. 2000).
This case was subsequently reversed by the United States Supreme Court on unrelated grounds. See County of Sacramento, 523 U.S. at 836-40, 838 n. 2 (discussing the constitutionality of police high speed chases) (noting that "the issue of municipal liability is not before us.")
Plaintiff has objected to the substitution of the City of Los Angeles, which is not a current party to this action. Plaintiff argues that plaintiffs should be permitted to choose which defendants they would like to sue. The Court agrees that, in this instance, a party not currently before the Court should not be substituted for the numerous Los Angeles officials who are currently Defendants in this action. Nevertheless, in light of Kentucky v. Graham's dicta that there is no longer a need to bring actions against local government officials because the action is available against the local governmental entity, this Court also concludes that there is no need to assert the third and fourth causes of action against the nearly five dozen officials named in the current action. Accordingly, Plaintiff's third and fourth causes of action will be dismissed as to all Defendants except Chief Parks, in his official capacity as a representative of the City.
Defendant Parks argues that the fourth cause of action does not state a cause of action against him because he is not alleged to be part of the conspiracy between the City Attorneys and the City Council Members. Chief Parks does not cite any authority in support of this position. An official capacity suit is only another method of suing a governmental entity — the City of Los Angeles. Therefore, Chief Parks is a proper defendant as an official of the City of Los Angeles. Moreover, fairly read, the Complaint alleges two conspiracies in the third and fourth causes of action that are mere subsets of a larger conspiracy. For these reasons, Chief Parks' argument is unpersuasive.
Accordingly, Defendants' Motions as to Plaintiff's third and fourth causes of action are hereby GRANTED. Plaintiff's third and fourth causes of action are HEREBY DISMISSED WITH PREJUDICE as to all Defendants, in both their individual and official capacities, except current Chief of Police Parks. Plaintiff's third and fourth causes of action are HEREBY DISMISSED WITH PREJUDICE as to Chief Parks in his individual capacity.
VI. Plaintiff's Fifth and Sixth Causes of Action
Defendants also argue that Plaintiff lacks standing to pursue declarative and injunctive relief regarding the LAPD's law enforcement practices, the City Attorney's practices in defending cases involving allegations of police misconduct, and the City Council's practice of indemnifying police officers' punitive damages awards.
A plaintiff has standing to seek injunctive and declaratory relief only when the possibility of future injury is particular and concrete. O'Shea v. Littleton, 414 U.S. 488, 496-497, 94 S.Ct. 669, 676-677 (1974). In other words, a plaintiff must demonstrate that a "credible threat" exists that he will again be subjected to the specific injury for which he seeks injunctive or declaratory relief. Kolender v. Lawson, 461 U.S. 352, 355 n. 3, 103 S.Ct. 1855 (1983). "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." Id. at 495-496; see also City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660 (1983) (holding that plaintiff once subject to police stranglehold lacked standing to seek injunctive relief without showing likely future injury from police brutality); Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999) (holding that motorists who were stopped near the United States/Mexico border allegedly due to their Hispanic appearance had no standing to pursue injunctive relief against officials of the United States Border Patrol; the fact that the motorists had each been stopped only one time in approximately ten years established that it was unlikely they would be stopped again).
The Court finds unavailing Plaintiff's argument that he has standing to pursue declaratory and injunctive relief because Plaintiff may be able to establish that there is a credible threat that dark-skinned men are targets of LAPD's unconstitutional acts. First, as noted previously, Plaintiff has not alleged his race in the Complaint. Second, even if Plaintiff were to establish that dark-skinned men are targets of the LAPD's allegedly unconstitutional actions, this fact does not translate into a particular and concrete threat of future injury to Plaintiff.
Such a threat might be shown where a plaintiff alleges that he is an individualized target of police misconduct. See, e.g., Guerrero v. Gates, 110 F. Supp.2d 1287 (C.D. Cal. 2000).
Accordingly, Defendants' Motions to Dismiss as to Plaintiff's fifth and sixth causes of action are HEREBY GRANTED. Plaintiffs fifth and sixth causes of action are HEREBY DISMISSED WITHOUT PREJUDICE.
VII. Plaintiff's Seventh and Eighth Causes of Action
Defendants argue that Plaintiff has not suffered an injury to "business or property," and therefore lacks standing to pursue either his substantive RICO claim or his RICO conspiracy claim. To have standing under RICO, Plaintiff must allege that he suffered an injury to "business or property." See 18 U.S.C. § 1964 (c); Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275 (1985). Plaintiff alleges that he suffered "lost employment, employment opportunities, and the wages and other compensation associated with said employment and opportunities . . . Plaintiff also alleges that he was unable to pursue gainful employment while "defending [himself] against unjust charges and/or while unjustly incarcerated."
The Ninth Circuit addressed the issue of what constitutes injury to "business or property" in Oscar v. University Students Co-op Ass'n, 965 F.2d 783, 785 (9th Cir. 1992) (en banc), cert. denied, 506 U.S. 1020, 113 S.Ct. 655 (1992). In Oscar, a tenant in an apartment building sued the student cooperative that operated a neighboring apartment building under RICO, alleging that she suffered diminution in enjoyment of her apartment and therefore suffered a RICO injury to property. Id. at 784-85. The Ninth Circuit rejected this contention. Id. at 785-88.
The court noted that Oscar suffered no out-of-pocket expenditures as a result of the alleged racketeering activity at the neighboring apartment building, and that, because she rented rather than owned her apartment, she suffered no diminution of the value of the apartment itself. Id. at 786-87. The court observed that, at its core, the plaintiffs injury — lost of enjoyment of her property — was one of personal injury. Id. at 787. Personal injuries are not compensable under RICO. Id. at 785-1986.
A fair reading of Oscar compels the Court to conclude that economic losses that flow from injuries that are essentially personal in nature are not compensable under RICO. See Oscar, 965 F.2d at 788. Actions under § 1983 for unconstitutional searches, false arrest, and false imprisonment are in the nature of personal injury. See Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573 (1989) (holding that claims under § 1983 are subject to a state's general or residual statute of limitations for personal injuries); Wilson v. Garcia, 471 U.S. 261, 277, 105 S.Ct. 1938 (1985) ("Congress unquestionably would have considered the remedies established [under § 1983] to be more analogous to tort claims for personal injury than, for example, to claims for damages to property or breach of contract.").
Oscar cited with approval the Seventh Circuit case of Doe v. Roe, 958 F.3d 763, 770 (7th Cir. 1992), adopting the explicit holding of Doe that economic losses that flow from personal injuries are not compensable under RICO:
As the Seventh Circuit said recently in rejecting a RICO claim for economic losses which derived from a fundamentally personal injury: "Perhaps the economic aspects of such injuries could, as a theoretical matter, be viewed as injuries to `business or property,' but engaging in such metaphysical speculation is a task best left to philosophers, not the federal judiciary." [Citing Doe.] The pleading requirements for an injury under RICO are quite clear. They are not met here.
Oscar, 965 F.2d at 788.
As the Oscar court noted, this result is not contrary to the intent of Congress in enacting RICO. Quoting the Third Circuit's opinion in Genty v. Resolution Trust Corp., 937 F.2d 899, 918 (3rd Cir. 1991), the Ninth Circuit stated:
Congress' a parent unwillingness to allow recovery for personal injuries under RICO appears to be consistent with enacting RICO and its specific intention to thwart the organized criminal invasion and acquisition of legitimate business enterprises and property. Ample law already existed to provide recovery for wrongful in iced personal injuries. The unavailability of a civil RICO treble damages action for personal injuries in no way restricts the plaintiffs right to bring a pendent state wroungful death or personal injury action along with a RICO action for damages to business and property. We discern no injustice in limiting a RICO plaintiffs recovery for his personal injuries to ordinary non-RICO legal measures.
Oscar, 965 F.2d at 786 (quoting Genty, 937 F.2d at 918-19). After indicating its agreement with the Genty court, the Ninth Circuit went on to note:
RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff Requiring that a plaintiff demonstrate a financial loss to [his or] her business or property is consistent with that purpose. It is also consistent with what the Supreme Court has termed the "restrictive significance" of the phrase "injured in his business or property."
Oscar, 965 F.2d at 786 (emphasis added) (citing Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326 (1979) (noting in dicta that the requirement that a RICO plaintiff be injured in his or her business or property was of "restrictive significance.")); see also McMillian v. Monroe County, 520 U.S. 781, 117 S.Ct. 1734 (1997) (referring to § 1983 claims as "constitutional torts").
For these reasons, the Court concludes that Plaintiff does not have standing to assert either of his RICO claims. Accordingly, Defendants' Motions to Dismiss as to Plaintiff's seventh and eighth causes of action are HEREBY GRANTED. Plaintiff's seventh and eighth causes of action are HEREBY DISMISSED WITHOUT PREJUDICE. Plaintiff is HEREBY GRANTED THIRTY DAYS' LEAVE TO AMEND the Complaint to make sufficient factual allegations to establish that he has standing to assert his seventh and eighth causes of action by supporting his contention that he suffered an injury to "business or property" in accordance with the legal principles set forth in this section. The Court has not considered Defendants' arguments that Plaintiff has failed to state a substantive RICO claim or RICO conspiracy claim. Should Plaintiff amend his Complaint in a manner sufficient to establish standing, Defendants may again raise these arguments and the Court will consider them at the appropriate time.
VIII. Conclusion
For the reasons and in the manner stated herein, Defendants' Motion to Dismiss is granted in part and denied in part. Plaintiff is hereby granted thirty days' leave to amend the Complaint.
IT IS SO ORDERED.