Opinion
2:06-CV-01652-MCE-PAN.
July 5, 2007
MEMORANDUM AND ORDER
Through the present action, Plaintiffs Estate of Dwayne Zachary ("Estate"); Linda Lampkin ("Administrator") and Dwaynela' Ta'shay Zachary Thomas, Augustine Zachary, Shamika Thomas ("Shamika"), Aileen Eldora Zachary, Dwayne Zachary, Larry Martwaine Zachary, and Joshua Clearance Zachary (collectively "Heirs") claim that Defendants County of Sacramento ("County"); City of Sacramento ("City"); Sacramento County Sheriff's Department ("Sheriff's Dept."); Lou Blanas, individually and in his official capacity as Sacramento County Sheriff ("Blanas"); Sacramento Police Department ("Police Dept."); Albert Nájera, individually and in his official capacity as Chief of Police of the City of Sacramento ("Nájera"); and Sacramento Sheriff Officers Does 1-49, Sacramento Police Officers Does 50-99, and additional Does 100-150, inclusive ("Does") violated their civil rights during the course of investigating a domestic disturbance call at the home of now deceased Dwayne Zachary ("Decedent.")
The Plaintiffs in this matter include the Estate of the decedent and the Administrator as distinct Plaintiffs from the Heirs of Decedent. In some instances, the moving Defendants are seeking to dismiss an entire claim as to all Plaintiffs while in others they seek to dismiss the Heirs only. Accordingly, where Defendants seek to dismiss an entire claim as to all Plaintiffs, the Court shall clarify the scope of its Order by referring to "Plaintiffs" which is intended to include all Plaintiffs. To the extent Defendants are seeking to dismiss Decedent's Heirs but are not challenging the remaining Plaintiffs' claims, the Court shall clarify the scope of its Order by referring to Decedent's "Heirs" which is intended to include only the Heirs as identified above.
Plaintiffs' first cause of action arises under the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("Section 1983") and alleges violations of the Fourth Amendment (excessive force and summary punishment), the Fourteenth Amendment (equal protection), and the Fifth and Fourteenth Amendments (due process) ("First Claim").
Plaintiffs' second claim also arises under Section 1983 and alleges violations of the Plaintiffs' right to Familial Relationships secured by the First, Fourth, Eighth and Fourteenth Amendments ("Second Claim"). Plaintiffs' third claim similarly arises under Section 1983 and municipal liability based on Defendants' tolerance and ratification of the use of unreasonable force and cruel and unusual punishment in violation of the Constitution ("Third Claim"). Plaintiffs' fourth claim arises under 42 U.S.C. § 1985 ("Section 1985") and alleges conspiracy to unlawfully brutalize Decedent ("Fourth Claim"). Plaintiffs' fifth claim arises under the California Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq. ("Unruh Act") and, more specifically, a violation of the Bane Act, Cal. Civ. Code § 52.1, wherein Plaintiffs assert an interference with Decedent's constitutional and statutory rights by threats, intimidation or coercion ("Fifth Claim"). Plaintiffs' sixth claim is for wrongful death in violation of the Fourth and Fourteenth Amendments ("Sixth Claim"). Plaintiffs' seventh through twelfth claims are brought pursuant to state law and allege assault and battery ("Seventh Claim"), false arrest ("Eighth Claim"), false imprisonment ("Ninth Claim"), intentional infliction of emotional distress ("Tenth Claim"), negligent training, hiring, discipline, retention ("Eleventh Claim"), and negligent infliction of emotional distress ("Twelfth Claim") (collectively "State Claims").
Presently before the Court is Defendant City and Defendant Nájera's Motion to Dismiss. Specifically, these Defendants seek to dismiss the Heirs' First Claim in so far as that claim seeks redress for violations of the Decedent's right to be free from excessive force and summary punishment under the Fourth Amendment, the Decedent's right to due process under the Fifth and Fourteenth Amendments and the Decedent's right to equal protection under the Fourteenth Amendment. Defendants so move on the ground that the Heirs have no standing in their personal capacities to seek relief for constitutional injuries inflicted upon Decedent. Defendants also asked that the Court dimiss the First Claim entirely as to alleged violations of equal protection and due process on the ground Plaintiffs have failed to state a viable claim for relief. Defendants further seek to dismiss the Heirs' Third Claim, Fourth Claim, Seventh Claim, Eighth Claim, Ninth Claim, and Tenth Claim similarly on the ground the Heirs' lack standing to assert these claims in their personal capacities. Defendants also moved the Court to dismiss the Plaintiffs' Eleventh Claim for negligent training, hiring, discipline on the ground that this claim was not properly based on statute.
Only Defendants City and Nájera are presently moving the Court to dismiss. The remaining Defendants have neither joined this Motion nor opposed it. Accordingly, this Court's Order is limited to the moving Defendants and, unless otherwise noted, references to "Defendants" shall be to these Defendants only.
Defendants' Motion to Dismiss the Heirs' Tenth Claim for Intentional Infliction of Emotional Distress excepts Shamika Thomas who allegedly witnessed the altercation. All references to the Heirs with respect to the Tenth Claim do not include Shamika Thomas.
Lastly, Defendants moved to dismiss the Police Dept. as a Defendant on the ground it is not a separate legal entity. For the reasons set forth below, Defendants' Motion is GRANTED in part, and DENIED in part.
Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
On August 4, 2005, seven to ten Sacramento police and sheriff officers responded to a domestic disturbance call directing them to the residence of Dwayne Zachary, an African-American man. Mr. Zachary answered the door dressed in his bathrobe only. The caller was not present at the residence, and officers quickly determined the caller was not in danger from Mr. Zachary. Upon proceeding to leave the premises, Mr. Zachary allegedly made statements that caused the officers to turn back and charge toward Mr. Zachary. Mr. Zachary retreated inside his home, and unsuccessfully tried to close the door on officers.Plaintiffs allege the officers then forced their way into Mr. Zachary's home, ultimately kicking, tasering, and beating him. Plaintiff Shamika Thomas, daughter of Mr. Zachary, approached her father's residence during the time officers were engaged in the altercation inside the home. She allegedly sought entry into the home and attempted to persuade the officers to cease their attack on Mr. Zachary. Shamika alleges officers precluded her from entering the home.
She then states she watched the altercation from an open kitchen window on the north side of the premises. At some point, Dwayne Zachary was brought out of his home motionless on a gurney. Mr. Zachary was then rushed to a nearby hospital but was pronounced dead late in the day on August 4, 2005. The Coroner's Final Report listed the cause of death as "Sudden cardiac arrest while being restrained prone after physical altercation with police that included [the] use of tazers." The present action followed.
STANDARD
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 2007 U.S. LEXIS 5901, 20-22 (U.S. 2007) (internal citations and quotations omitted).
Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 21 (citing 5 C. Wright A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action").
If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of the amendment. . . ." Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
ANALYSIS
I. Civil Rights Claims
Section 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979). The first step in any such claim is to identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 394 (1989).
Here, Plaintiffs allege violations of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Sec. Am. Compl. ¶¶ 27, 32.
A. First Claim
i. Heirs'Claim
Federally protected rights that are enforceable under Section 1983 are personal to the injured party. Rose v. City of Los Angeles, 814 F.Supp. 878, 881 (C.D. Cal. 1993). That said, if a claim under 42 U.S.C. § 1983 accrues before the death of an individual, that claim survives to the extent state law authorizes a survival action. 42 U.S.C. § 1988(a); Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). Under California law, if an injury giving rise to liability occurs before an individual's death, the claim survives to the decedent's estate, and the decedent's personal representative may prosecute the action. See Cal. Civ. Proc. Code § 377.30. In addition, California law provides in pertinent part as follows:
"[A] cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: (a) The decedent's surviving spouse, domestic partner, children . . ."
Cal. Code Civ. Proc. § 377.60 (emphasis added).
With respect to this First Claim, the Heirs argue they possess a right to assert this First Claim given the loss of familial relationships suffered as a result of the events detailed in the Complaint.
As an initial matter, the Court is agreed that the facts in this case could give rise to a number of causes of action that may be asserted by the Heirs personally. Indeed, "a section 1983 claim must be based upon the violation of plaintiff's personal rights, and not the rights of someone else." Robbins v. City of Hanford, 2006 U.S. Dist. LEXIS 44173, *21 (D. Cal. 2006) (citing Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990); Van Deelen v. Shawnee Mission Unified Sch. Dist. # 512, 316 F. Supp. 2d 1052, 1056 (D. Kan. 2004); Rose, 814 F.Supp. at 881; see also McKelvie v. Cooper, 190 F.3d 58, 64 (2d Cir. 1999)).
The facts in this case are undisputed that the Decedent, rather than the named Heirs in this action, personally suffered the alleged constitutional violations. Given that fact, the Motion to Dismiss the First Claim as asserted by the Heirs is proper and, hereby, granted without leave to amend. To the extent Defendants seek to have the First Claim dismissed as asserted by the Heirs on behalf of Decedent or by the Estate or Administrator, the Motion is denied.
ii. Plaintiffs' First Claim Arising under Fifth and Fourteenth Amendments
Defendants move to dismiss the Fifth and Fourteenth Amendment claims asserted as part of Plaintiffs' First Claim on the ground that Plaintiffs have failed to state a claim for relief.
a. Fifth Amendment
Plaintiffs allege a violation of the Decedent's rights under the Fifth Amendment. The due process clause of the Fifth Amendment and the equal protection component thereof apply only to actions of the federal government. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (citing Schweiker v. Wilson, 450 U.S. 221, 227, 67 L. Ed. 2d 186, 101 S. Ct. 1074 (1981)). The Fifth Amendment does not apply to the actions of state or local governments. Lee, 250 F.3d at 687. Plaintiffs here do not allege any of the Defendants are federal actors. Accordingly, the Court finds Plaintiffs have failed to state a claim alleging a violation of due process or equal protection under the Fifth Amendment. Consequently, Defendants' Motion to Dismiss Plaintiffs' Fifth Amendment claim is granted with leave to amend.b. Fourteenth Amendment — Due Process
When an explicit textual provision of the federal constitution protects against a challenged government action, the claim must be analyzed under that specific provision alone and not under the more general guarantee of substantive due process. Albright v. Oliver, 510 U.S. 266, 273, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994) (plurality opinion of REHNQUIST, C. J.) (quoting Graham v. Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989)) (internal quotation marks omitted).
Defendants contend that the "more-specific-provision" rule of Graham precludes Plaintiffs' Fourteenth Amendment substantive due process claim because Plaintiffs' claims brought on behalf of Decedent should be governed by the Fourth Amendment. See e.g. County of Sacramento v. Lewis, 523 U.S. 833, 844 (1988). Plaintiffs simply disagree with Defendants' contention without explanation except to say Decedent was deprived of his life in violation of substantive due process.
In addressing an excessive force claim brought under Section 1983, analysis begins by isolating the precise constitutional violation with which the defendant is charged. Graham, 490 U.S. at 394. "The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized 'excessive force' standard." Id. Where an excessive force claim arises in the context of an arrest or investigatory stop, it most often invokes the protection of the Fourth Amendment. Id. However, when a free citizen is denied his or her constitutional right to life through means other than a law enforcement official's arrest, investigatory stop or other seizure, Graham arguably preserves a substantive due process claim. See Lewis, 523 U.S. at 844-845 (internal citations omitted).
Here, Plaintiffs allege Decedent lost his life through an excessive and brutal beating by law enforcement. Even presuming the foregoing to be true, there is insufficient information in the record to isolate the precise constitutional violation with which the Defendants are charged.
Accordingly, Defendants' Motion to Dismiss Plaintiffs' Fourteenth Amendment substantive due process claim is granted with leave to amend.
c. Fourteenth Amendment — Equal Protection
Defendants seek to dismiss Plaintiffs' claim for violation of equal protection under the Fourteenth Amendment on the ground that Plaintiffs have failed to state a viable claim for relief. More specifically, Defendants argue that Plaintiffs failed to allege Defendants acted with an intent or purpose to discriminate against Decedent based on his membership in a protected class. See Lee, 250 F.3d at 686. Plaintiffs concede they failed to allege Defendants so discriminated and assert they will include such an allegation in a subsequent amended Complaint. Given that no claim under Section 1983 for violation of equal protection may be stated absent an allegation Defendants acted with an intent or purpose to discriminate based on Decedent's membership in a protected class, dismissal is proper. Consequently, Defendants' Motion to Dismiss Plaintiffs' equal protection claim is granted with leave to amend.
B. Third Claim — Municipal Liability
"Section 1983 also imposes liability upon municipalities for constitutional deprivations resulting from actions taken pursuant to government policy or custom." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988).
As noted above, a section 1983 claim must be based upon the violation of plaintiff's personal rights, and not the rights of someone else. Robbins, 2006 U.S. Dist. LEXIS 44173, *21. To the extent the Heirs seek to assert this Section 1983 claim for municipal liability as personal to them, it is dismissed without leave to amend. To the extent this claim is alleged on behalf of Decedent, Defendants' Motion to Dismiss is denied.
2. Fourth Claim — Conspiracy
Under 42 U.S.C. § 1985(3) ("Section 1985"), a claim may be alleged when "two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws." Here, Plaintiffs allege that Defendants agreed and conspired to brutally and unlawfully beat and tase Decedent. Sec. Am. Compl. ¶ 40. In addition, Plaintiffs allege Defendants agreed and conspired to fabricate false police reports regarding the fatal beating of Decedent. Id. ¶ 41.
Defendants once again seek to dismiss this claim on the ground that the Heirs lack standing to assert this claim because this claim, like the foregoing claims, belongs personally to the Decedent. As explained above, Plaintiffs again oppose Defendants' Motion on the ground that they may bring the claim pursuant California's survival statute.
The language of Section 1985 itself belies Plaintiffs' argument. Specifically, the language of Section 1985 provides in pertinent part that if two or more persons conspire, for the purpose of depriving any person or class of persons the equal protection of the laws ". . . the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators." 42 U.S.C. § 1985(3). Here, the Complaint itself alleges the subject of the conspiracy is Decedent and no other. Accordingly, to the extent the Heirs seek to assert the Fourth Claim on their own behalf, the Motion to Dismiss is granted without leave to amend. To the extent the Defendants seek to Dismiss this Fourth Claim as it would have accrued to Decedent himself, the Motion is denied.
II. State Claims
1. Seventh through Ninth Claims
As above, Defendants move to dismiss the Heirs' Seventh through Ninth Claims for lack of standing. Plaintiffs again cite California's survival statute in opposition. Under California law, the following claims are personal in nature, not assignable, and can only be made by the person suffering the injury: assault and battery, Essex Ins. Co. v. Five Star Dye House, 38 Cal. 4th 1252, 1259 (2006), false arrest, Hogen v. Valley Hospital, 147 Cal. App. 3d 119, 127 (1983), and false imprisonment, Wilson v. Stolman, 2006 U.S. Dist. LEXIS 18617.
The claims for assault and battery (Sec. Am. Compl. ¶¶ 52-55) and false arrest (Sec. Am. Compl. ¶¶ 56-60) are not properly alleged because the Heirs were not personally grieved. Accordingly, to the extent the Heirs seek to personally vindicate rights, the Defendants' Motion to Dismiss is proper and, hereby granted without leave to amend. To the extent they seek to vindicate Decedent's alleged claims for assault, battery and false arrest, the Defendants' Motion is denied.
The claim for false imprisonment fails in two ways. Under California law, the claim for false imprisonment is the "unlawful violation of the personal liberty of another." Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998). In order to state a claim for false imprisonment, Plaintiffs must allege a false arrest and unreasonable delay in bringing the arrested person before a judicial officer. See Wilson, 2006 U.S. Dist. LEXIS 18617 at *9. Heirs have not alleged Decedent was arrested nor have they alleged an unreasonable delay in bringing Decedent before a legal officer. Accordingly, Defendants' Motion to Dismiss this Ninth Claim is granted with leave to amend.
2. Tenth Claim — Intention Infliction of Emotional Distress
Under California law, "even if an action is intentional and outrageous, it is not actionable unless it is directed at the plaintiff or occurs in the presence of the plaintiff and the defendant is aware that the plaintiff is present." Christensen v. Super. Ct., 54 Cal. 3d 868, 903 (1991).
It is undisputed that the Heirs, save Shamika, were not present at the time Defendants allegedly violated Decedent's rights. Sec. Am. Compl. ¶¶ 4, 64. Accordingly, Defendants' Motion to Dismiss the Tenth Claim is granted as to all Heirs but Shamika with leave to amend.
Defendants did not move the Court to dismiss the Tenth Claim as to Shamika. Rather, Defendants only moved the Court to dismiss this Tenth Claim as to the remaining Heirs only. Consequently, the Tenth Claim is dismissed only as to the Heirs save Shamika.
3. Eleventh Claim
Plaintiffs assert a claim of negligent training, hiring, discipline, retention against County of Sacramento; City of Sacramento; Sacramento County Sheriff's Department; Sacramento Police Department; Lou Blanas and Albert Nájera. Defendants City and Nájera move to dismiss Plaintiffs' Eleventh Claim on the ground that it lacks a statutory basis. Plaintiffs rebut that this Eleventh Claim is grounded in 42 U.S.C. § 1983. They further explain that when execution of a government's policy or custom inflicts an injury, the public entity is liable under Section 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
Under the California Tort Claims Act "a public entity is not liable for injury arising from an act or omission except as provided by statute." Cal. Gov. Code, § 815, subd. (a); see also Hoff v. Vacaville Unified Sch. Dist., 19 Cal. 4th 925, 932 (Cal. 1998).
California Government Code section 815.2(a) is one such statute. It provides: "A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee. . . ." Cal. Gov't Code § 815.2(a).
Given the foregoing statutory authority for a claim against a California Government entity as well as the Monell claim cited by Plaintiffs, the Court finds Defendants' argument unpersuasive. Consequently, Defendants' Motion to Dismiss Plaintiffs' Eleventh Claim is denied.
III. Claims Against Defendant Sacramento Police Department
Defendants move to dismiss Defendant Sacramento Police Department as to all Claims arguing that dismissal is proper because the Police Department is not a separate legal entity and, consequently, not subject to suit. Plaintiffs oppose Defendants contention and, correctly, note that the Ninth Circuit has expressly held that municipal police departments are public entities for purposes of federal jurisdiction.
Federal Rule of Civil Procedure 17(b) requires the standing of a police department to be determined by the law of the state. California Government Code section 945 provides that public entities may sue or be sued. California Government Code section 811.2 defines a public entity as ". . . a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the state."
The Ninth Circuit confronted this express question in Shaw v. State of California Dept. of Alcoholic Beverage Control. 788 F.2d 600, 604-605 (9th Cir. 1986). There, the court concluded that a police department is a public entity under Section 811.2 and, therefore may be sued in federal court. Id.; see also Karim-panachi v. Los Angeles Police Dept, 839 F.2d 621, 624 (9th Cir. 1988). Consequently, Defendants' Motion to Dismiss Sacramento Police Department is denied.
CONCLUSION
For the reasons set forth above, the Defendants' Motion to Dismiss is GRANTED in part and DENIED in part. Specifically, the Motion to Dismiss the First Claim as asserted by the Heirs is proper and, hereby, granted without leave to amend. To the extent Defendants seek to have the First Claim dismissed as asserted by the Heirs on behalf of Decedent or by the Estate or Administrator, the Motion is denied. The Motion to Dismiss Plaintiffs' First Claim asserting Fifth Amendment violations is granted with leave to amend. The Motion to Dismiss Plaintiffs' First Claim alleging Fourteenth Amendment substantive due process violations is granted with leave to amend. The Motion to Dismiss Plaintiffs' First Claim alleging Fourteenth Amendment equal protection is granted with leave to amend. The Motion to Dismiss Heirs' Third Claim for municipal liability is granted without leave to amend to the extent they seek to assert this claim as personal to them. To the extent this Third Claim is alleged on behalf of Decedent, Defendants' Motion to Dismiss is denied.
The Motion to Dismiss the Fourth Claim by the Heirs is granted without leave to amend to the extent they seek to assert this Claim on their own behalf. To the extent the Defendants seek to Dismiss this Fourth Claim as it would have accrued to Decedent himself, the Motion is denied. The Motion to Dismiss the Seventh Claim for assault and battery as well as the Eighth Claim for false arrest is granted without leave to amend to the extent the Heirs seek to personally vindicate rights. To the extent the Heirs seek to vindicate Decedent's alleged claims for assault, battery and false arrest, the Defendants' Motion is denied. The Motion to Dismiss the Heirs Ninth Claim for false imprisonment is granted with leave to amend. The Motion to Dismiss Heirs' Tenth Claim is granted with leave to amend as to all Heirs save Shamika. Defendants' Motion to Dismiss Plaintiffs' Eleventh Claim is denied. The Motion to Dismiss all claims against the Police Dept. is denied. Plaintiffs have twenty (20) days following the date of this Order to file their Amended Complaint.
IT IS SO ORDERED.