Opinion
No. C 10-05655 LB
01-16-2014
KAYLE HOWARD, Plaintiff, v. MICHAEL DALISAY et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
[Re: ECF Nos. 112, 118]
INTRODUCTION
On or about March 11, 2010, Alameda County Sheriff's Office ("ACSO") deputies Michael Dalisay and Fenton Culley arrested Kayle Howard based on an outstanding arrest warrant for forgery. That warrant was issued based in part on the investigation of Officer Melvin Smith of the San Pablo Police Department. Deputies Dalisay and Culley took Ms. Howard to Santa Rita Jail, where she was questioned by Detectives David Neece and [FNU] Pamplona of the San Pablo Police Department. She was released on March 18, 2010 and subsequently charged with, and convicted of, criminal violations related to forgery in Contra Costa County Superior Court.
Ms. Howard, who is proceeding pro se, filed the instant action against the ACSO and Deputies Dalisay and Culley (collectively, the "ACSO Defendants") as well the City of San Pablo, Officer Smith, and Detectives Neece and Pamplona (collectively, the "San Pablo Defendants") for false arrest and false imprisonment in violations of her Fourth Amendment and Fourteenth Amendment substantive due process rights, and for depriving her of her possessions in violation of her Fourteenth Amendment procedural due process rights, pursuant to 42 U.S.C. § 1983 and Monell v. Dep't of Soc. Servs, 463 U.S. 658 (1978).
The San Pablo Defendants answered her original complaint, but the ACSO Defendants moved to dismiss it. The court granted the ASCO Defendants' motion, dismissed with prejudice Ms. Howard's Fourteenth Amendment substantive due process claim, and dismissed without prejudice her Fourth Amendment, Fourteenth Amendment procedural due process, and Monell claims. The court gave her leave to file a First Amendment Complaint.
She did, and now the ACSO Defendants and the San Pablo Defendants move to dismiss it. Upon review of the papers submitted, the arguments of the parties at the January 16, 2014 hearing, and consideration of the applicable authority, the court GRANTS Defendants' motions and DISMISSES WITH PREJUDICE all of Ms. Howard's claims.
STATEMENT
In its October 16, 2013 order granting the ACSO Defendants' motion to dismiss, the court previously summarized the allegations in Ms. Howard's original complaint as follows:
On or about March 11, 2010, Ms. Howard had an 1interaction with Deputies Dalisay and Culley. Complaint, ECF No. 1 ¶¶ 14-17. According to her complaint, "she was told she was reported to the police for a noisy car alarm." Id. ¶ 15. She then "pointed out that the no[i]sy vehicle did not belong to her." Id. One of the Deputies then "told her that she had an outstanding warrant issued by the City of San Pablo." Id. ¶ 15. The Deputies then "detained [her] for no reason and transported her to Santa Rita Jail." Id. ¶ 14.
It turns out that there was, in fact, an outstanding warrant for her arrest. Roughly two months earlier, on January 12, 2010, Judge Trevor White of the Contra Costa County Superior Court issued a warrant for Ms. Howard's arrest for forgery in violation of California Penal Code § 476. MacKay Declaration, Exh. 1, ECF No. 94-
1; see Complaint, ECF No. 1 ¶ 17 (acknowledging the existence of the warrant for her arrest).
Back to March 11: Ms. Howard alleges that when the Deputies arrested her, "they left a person inside her home." Complaint, ECF No. 1 ¶ 17. She told one of the Deputies that the person "did not live at her address" and that "she did not want that person to remain inside her home as she had valuables that she feared the unwarranted person would steal." Id. The Deputy "ignored her request and left her residence unsecured with the person inside." Id.
She was taken to Santa Rita Jail and held in custody for eight days. Id. ¶¶ 18, 19. She alleges she was held there by Detectives Neece and Pamplona, id. ¶ 18, and that she "learned that Officer [] Smith of the San Pablo Police Department caused her arrest by submitting [her] DMV photograph to witnesses and suggesting that the person who passed the bad checks was in fact [her]," even though Officer Smith "had reason to suspect that [she] was in any way connected to the underlying criminal incident," id. ¶ 20. On March 18, 2010, she was released without being charged with
a crime, id. ¶¶ 18, 19, and when she returned home, she noticed that "her valuables were missing," id. ¶ 21.10/16/2013 Order, ECF No. 103 at 2-3.
Citations are to the Electronic Case File ("ECF") with pin cites to the electronically-generated page numbers at the top of the document.
California Penal Code § 476 provides in full: "Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery."
In support of their motion, the ACSO Defendants asked the court to take judicial notice of the warrant for Ms. Howard's arrest. First Request for Judicial Notice, ECF No. 93. Under Federal Rule of Evidence 201, "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). A "high degree of indisputability is the essential prerequisite" to taking judicial notice and "the tradition [of taking judicial notice] has been one of caution in requiring that the matter be beyond reasonable controversy." Fed. R. Evid. 201(a) & (b) advisory committee's notes (emphasis added). A court, then, may take judicial notice of undisputed facts contained in public records, but it may not take judicial notice of disputed ones. See Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001); see also Muhammad v. California, C-10-1449-SBA, 2011 WL 873151, at *4 (N.D. Cal. Mar. 11, 2011) (denying request for judicial notice of an address contained on a complaint filed in another case because the "underlying facts relevant to Plaintiff's residence are disputed and otherwise do not meet the requirements of Rule 201"); Lee v. Bender, C-04-2637-SBA, 2005 WL 1388968, at *8 (N.D. Cal. May 11, 2005) ("Court filings and orders are the type of documents that are properly noticed under Federal Rule of Evidence 201. Notice can be taken, however, 'only for the limited purpose of recognizing the judicial act that the order [or filing] represents on the subject matter of the litigation.'") (quoting United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (citation and internal quotation marks omitted). Here, while Ms. Howard may have been challenging the accuracy of the evidence submitted in support of probable cause, see Complaint, ECF No. 1 ¶ 22 (alleging that "the City of San Pablo" might have "issued a warrant[] based upon false information"), she did not appear to attack its existence, see id. ¶ 17 ("On or about March 1, 2010, [Ms. Howard] learned that a Contra Costa County Judge issued a Ramey Warrant for [her] arrest after she was allegedly positively identified as a person who illegally cashed one or more checks."). Thus, because the warrant is a public record and Ms. Howard did not contest its existence, the court took judicial notice of it.
Ms. Howard erroneously sued Officer Melvin Smith as "Susan Smith" and Detective Pamplona as Detective "Pamploma." See Answer (Detectives Neece and Pamplona, Officer Smith), ECF No. 50.
On December 13, 2010, Ms. Howard sued Defendants in this court pursuant to 42 U.S.C. § 1983. See generally id. She explicitly brought claims against Defendants for false imprisonment and false arrest in violations of her Fourth Amendment and Fourteenth Amendment substantive due process rights, and for depriving her of her possessions in violation of her Fourteenth Amendment procedural due process rights, and she also brought a Monell claim against the ACSO for failing to "properly supervise" and "train its deput[ies]" and because it has a "practice of making unreasonable arrests." Complaint, ECF No. 1 ¶¶ 23, 26; see Monell, 463 U.S. 658. She may also bring a claim related to the alleged loss of her "valuables." Id. ¶¶ 17, 21. Ms. Howard said that she sued "both the County of Alameda and the City of San Pablo because she does not know if the Alameda County Sheriff's Department fabricated the story about the warrant or if the City of San Pablo issued a warrant[] based upon false information," but "[o]bviously, one or the other is liable for her injuries." Id. ¶ 22.
Near the outset of her original complaint, Ms. Howard alleged that "[t]his action is brought pursuant to 42 U.S.C. sections 1983, et seq. and 1988, and the California Constitution, civil rights statutes and common law." Complaint, ECF No. 1 ¶ 6. In its October 16. 2013 order, the noted that while the Ninth Circuit has made clear that notice pleading merely requires the plaintiff to set forth in his complaint claims for relief, not causes of action, statutes or legal theories, Alvarez v. Hill, 518 F.3d 1152, 1157-58 (9th Cir. 2008) (citing Fed. R. Civ. P. 8(a)(2)), Ms. Howard made no further mention of these authorities, see generally Complaint, ECF No. 1, and her allegations in support of her § 1983 claims did not raise a plausibly suggest a right to relief under them, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, to the extent that Ms. Howard intended to bring claims under 42 U.S.C. § 1988, "the California Constitution, civil rights statutes and common law," the court dismissed without prejudice those claims. See 10/16/2013 Order, ECF No. 103 at 4 n.6.
The San Pablo Defendants answered Ms. Howard's original complaint. See Answer (City of San Pablo), ECF No. 17; Answer (Detectives Neece and Pamplona, Officer Smith), ECF No. 50. The ACSO Defendants, however, moved to dismiss it. Original Motion to Dismiss, ECF No. 19. The court never heard the motion; instead, upon Defendants' unopposed motion, the court stayed the action pending the criminal proceedings against Ms. Howard stemming from her arrest and denied without prejudice the ACSO Defendants' motion to dismiss. Order Staying Case, ECF No. 58; Order Denying Original Motion to Dismiss, ECF No. 66; see Blechman Declaration, ECF No. 120, Ex. B, ECF No. 120 at 8-11 (criminal complaint in People v. Howard, No. 305554-8 (July 26, 2010)). Ms. Howard's criminal proceedings were continued multiple times, see, e.g., June 24, 2013 Order, ECF No. 83, but finally were resolved on or before August 23, 2013, see Joint Status Update, ECF No. 86 (filed on August 23, 2013; noting that Ms. Howard's criminal proceedings have been "completed"). After a trial, a jury found her guilty of five crimes: (1) "forgery-falsely making, altering, passing documents" in violation of California Penal Code § 470(d); (2) "2nd degree commercial burglary" in violation of California Penal Code §§ 459 and 460(b); (3) "possessing forged instrument" in violation of California Penal Code § 475(a); (4) "attempted petty theft" in violation of California Penal Code §§ 484, 488, and 664; and (5) "making, possessing, and uttering fictitious instrument" in violation of California Penal Code § 476. Blechman Declaration, Ex. C, ECF No. 120 at 12-16.
In support of their motion, the San Pablo Defendants ask the court to take judicial notice of four documents: (1) the warrant for Ms. Howard's arrest; (2) the criminal complaint in People v. Howard, No. 305554-8 (July 26, 2010); (3) the jury verdict against Ms. Howard in People v. Howard, No. 305554-8 (June 28, 2013); and (4) the clerk's docket and minutes in People v. Howard, No. 305554-8 (July 2, 2013). Second Request for Judicial Notice, Exs. A-D, ECF No. 120. As noted above in Footnote 3, the court already took judicial notice of the warrant. The three other documents are all public records that may be judicially noticed, see Lee, 250 F.3d at 689-90, and Ms. Howard does not challenge their authenticity. The court thus takes judicial notice of them.
The court thereafter lifted the stay of the case, Order Lifting Stay, ECF No. 90, and on September 9, 2013 the ACSO Defendants filed a new motion to dismiss, Motion, ECF No. 91. On October 16, 2013, the court granted their motion, dismissed with prejudice Ms. Howard's Fourteenth Amendment substantive due process claim, and dismissed without prejudice her Fourth Amendment, Fourteenth Amendment procedural due process, and Monell claims. 10/16/2013, ECF No. 103. The court gave her leave to file a First Amendment Complaint. Id. at 9.
She did so on November 26, 2013. First Amended Complaint, ECF Nos. 109 & 109-1. The document she filed consists of sixty-one pages. See id. Nine of those pages contain factual allegations, some of which relate to the her claims here and most of which appear to relate to other wrongs allegedly committed against her by third parties at various times in her life. See id., ECF No. 109 at 1-9. The remaining fifty-two pages are copies of various documents, most of which appear to relate to her medical and employment histories. See First Amended Complaint, ECF No. 109 at 10-37; id., ECF No. 109-1 at 1-24. And although her caption lists only Deputies Dalisay and Culley, Officer Smith, and Officers Neece and Pamploma as defendants, she also alleges that she suffered damage that was caused by the ACSO and San Pablo Police Department. Id. at 109 at 1-2.
Ms. Howard does not allege as many facts about her arrest in her First Amended Complaint as she did in her original complaint. See id. at 2-9. She does allege, however, that on March 11, 2010 she "returned to her residence and various persons were upset because her car alarm apparently was "going off." Id. at 6. She also alleges that Deputies Dalisay and Culley "illegally confiscat[ed] my keys to my vehicle and my residence and [told] me that I did not need any key[s] to my property [and] then proceed[ed] to tell James Barker that he better stay in my home[,] which I do not allow when I [am] not at home." Id. at 2. She also alleges that on May 12, 2010, two individuals were arrested and that those individuals had stolen her identity. Id. at 9. Finally, she alleges that "all parties involve[d] knew I had [n]o parts in any [c]riminal [a]ct[ion] being done prior to" March 11, 2010. Id. at 2. Ms. Howard does not mention any specific statutes or violations of law, see generally id., but the court assumes that she means to reallege her Fourth Amendment, Fourteenth Amendment procedural due process, and Monell claims.
On December 5, 2013, the ACSO Defendants moved to dismiss Ms. Howard's First Amended Complaint pursuant to Rule 12(b)(6). ACSO Defendants' Motion to Dismiss FAC, ECF No. 112. On December 12, 2013, Ms. Howard filed a one-page document titled "Plaintiff['s] Response for Motion Hearing 01/16/2014 at 9:30 on 15th Floor Courtroom C Judge Laurel Beeler." Opposition, ECF No. 123. The court construes this document as an opposition to the ACSO Defendants' motion because they noticed their motion for hearing at 9:30 a.m. on January 16, 2014. The full, substantive text of her opposition reads as follows:
The Plaintiff Kayle L. Howard hereby provide[s] the following case management statement to the court for the upcoming case management motion hearing conference on January 16, 2014. I have already submitted all of the relevant issues in my First
Amended Complaint. I will have supporting documentation of any issues in question. I will be reporting to Courtroom C on the 15th Floor, U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, California 94102. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct[].Opposition, ECF No. 123 at 1.
. . .
I am the only one affiliated with any and everything pertaining to me in every [illegible] and all aspects of my business.
That same day, even though they had previously answered Ms. Howard's original complaint, the San Pablo Defendants filed a motion to dismiss her First Amended Complaint pursuant to Rule 12(b)(6). San Pablo Defendants' Motion to Dismiss FAC, ECF No. 118. Given the procedural posture, they stated that the court alternatively could consider their motion one for judgment on the pleadings pursuant to Rule 12(c). Id. at 5 n.3. Given this procedural posture, as well as the identical legal standards for considering a Rule 12(b)(6) motion and a Rule (c) motion, the court will consider the San Pablo Defendants' motion to dismiss under Rule 12(b)(6). Ms. Howard did not file an opposition to this motion, see Statement of Non-Opposition, ECF No. 124, but the court nevertheless considers her December 12, 2013 filing as an opposition to the San Pablo Defendants' motion, as it incorporates by reference the issues raised in her First Amended Complaint, see Opposition, ECF No. 123.
On January 16, 2014, the court heard oral argument from the parties. 12/16/2014 Minute Order, ECF No. 125.
ANALYSIS
I. LEGAL STANDARD
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557). "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 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (internal citations and parentheticals omitted).
In considering a motion to dismiss, a court must accept all of the plaintiff's allegations as true and construe them in the light most favorable to the plaintiff. See id. at 550; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007). In addition, courts may consider documents attached to the complaint. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation omitted). However, the court need not accept as true allegations that contradict matters properly subject to judicial notice or by exhibit. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
If the court dismisses the complaint, it should grant leave to amend even if no request to amend is made "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)). But when a party repeatedly fails to cure deficiencies, the court may order dismissal without leave to amend. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (affirming dismissal with prejudice where district court had instructed pro se plaintiff regarding deficiencies in prior order dismissing claim with leave to amend).
II. APPLICATION
A. Ms. Howard's § 1983 False Arrest and False Imprisonment Claims Must Be Dismissed
Ms. Howard once again brings a claim for false arrest and false imprisonment in violations of her Fourth Amendment rights. To prevail on such claims, Ms. Howard must "demonstrate that there was no probable cause to arrest [her]." Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (citing George v. City of Long Beach, 973 F.2d 706, 710 (9th Cir. 1992)). Probable cause exists where an officer has "reasonably trustworthy information sufficient to warrant a prudent person in believing that plaintiff had committed a crime." United States v. Butler, 74 F.3d 916, 920 (9th Cir. 1996) (quoting United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990)). An arrest pursuant to a valid warrant ordinarily satisfies this standard and thus is consistent with the Fourth Amendment. See Baker v. McCollan, 443 U.S. 137, 143 (1979).
The court previously dismissed these claims with respect to the ACSO Defendants and explained as follows:
It is undisputed that Ms. Howard was booked into Santa Rita Jail based on the warrant issued by Judge White. Whatever Fourth Amendment issues attend the issuance of the warrant (i.e., the alleged false information that supported the issuance of the warrant), those issues are about the San Pablo Defendants, not about the ACSO deputies who allegedly arrested and booked Ms. Howard on the warrant. She says that she sued the ACSO Defendants because "she does not know if . . . [they] or the City of San Pablo issued a warrant[] based on false information" and "obviously one or the other is liable for injuries." Complaint, ECF No. 1 ¶ 22. But those conclusory allegations are insufficient to establish a claim against the ACSO Defendants. Indeed, the warrant was signed by Detective Neese, one of the San Pablo Defendants.10/16/2013 Order, ECF No. 103 at 6 (emphasis in original).
In an abundance of caution, the court DISMISSES WITHOUT PREJUDICE Ms. Howard's Fourth Amendment claims. On the face of the complaint, the court cannot see how a claim could be stated against arresting and booking deputies at Santa Rita Jail. But if there is some connection of them to the alleged false information in the affidavit that supported the issuance of the arrest warrant, the court gives Ms. Howard until November 7, 2013 to file an amended complaint. The court suggests to Ms. Howard that at least based on her allegations, the ACSO Defendants do not seem to have a nexus to the issuance of the warrant.
With this reasoning in mind, the ACSO Defendants point out that Ms. Howard has not alleged any additional facts in her First Amended Complaint that would tie the ACSO or Deputies Dalisay or Cullen to the issuance of the warrant for her arrest. While she does allege that "all parties involve[d] knew I had [n]o parts in any [c]riminal [a]ct[ion] being done prior to" March 11, 2010, id. at 2, this statement is conclusory, and she alleges no facts to show, or even suggest, that the ACSO Defendants had anything to do with the issuance of the warrant or acted with deliberate indifference to her rights. See Pierson v. Ray, 386 U.S. 547, 555-557 (1967) ("the defense of good faith and probable cause" generally is available to police officers in an § 1983 action against them for false arrest and imprisonment); accord Coverdell v. Dep't. of Social & Health Servs., 834 F.2d 758, 764-65 (9th Cir. 1987) (recognizing that "persons who faithfully execute valid court orders" are "integral parts of the judicial process" and therefore are covered by quasi-judicial immunity).
Moreover, to the extent that Ms. Howard alleges that she was not the forgery suspect identified in the warrant, and thus there was no probable cause for her arrest, her claims fail because she was later convicted of the criminal acts upon which the warrant was based. As Defendants point out, in Heck v. Humphrey, 512 U.S. 477(1994), the Supreme Court held that
to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Id. at 486-87. Here, a judgment in favor of Ms. Howard on these claims would amount to a finding that there was no probable cause to arrest her for forgery, and this necessarily would imply the invalidity of her conviction. Because Ms. Howard has not demonstrated that her conviction has already been invalidated, under Heck, her claims must be dismissed.
Finally, to the extent that Ms. Howard brings a claim against Officer Smith for providing allegedly false information to Judge White, her claim fails. While numerous courts have recognized false arrest claims under § 1983 on the basis of an unlawfully-issued arrest warrant, see KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004) ("To support a § 1983 claim of judicial deception, a plaintiff must show that the defendant deliberately or recklessly made false statements or omissions that were material to the finding of probable cause."); United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985) ("the Fourth Amendment mandates that a defendant be permitted to challenge a warrant affidavit valid on its face when it contains deliberate or reckless omissions of facts that tend to mislead"), to prove such a "judicial deception claim," a plaintiff "must establish both [(1)] a substantial showing of the deliberate falsity or reckless disregard of the truth of the statements in the affidavit and [(2)] the materiality of those statements to the ultimate determination of probable cause," Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995). The materiality determination is a question for the court and "requires the plaintiff to demonstrate that the magistrate would not have issued the warrant with false information redacted, or omitted information restored." Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011) (quotation marks and citation omitted). Here, Ms. Howard alleges nothing to demonstrate that Officer Smith committed deliberate falsity or acted with reckless disregard of the truth of the statements in the arrest warrant affidavit.
Accordingly, for the reasons stated above, Ms. Howard's false arrest and false imprisonment claims against all Defendants must be DISMISSED WITH PREJUDICE.
B. Ms. Howard's § 1983 "Missing Valuables" Claim Must Be Dismissed
Ms. Howard's other § 1983 claim is that when Deputies Dalisay and Culley arrested her and took her to Santa Rita Jail, they did not remove an unauthorized person, presumably Mr. Barker, who "did not live at her address" and who (she implies) stole her "valuables." See Complaint, ECF No. 1 ¶¶ 17, 21; First Amended Complaint, ECF No. 109 at 2. She alleges that Deputies Dalisay and Culley "illegally confiscat[ed] my keys to my vehicle and my residence and [told] me that I did not need any key[s] to my property [and] then proceed[ed] to tell James Barker that he better stay in my home[,] which I do not allow when I [am] not at home." First Amended Complaint, ECF No. 109 at 2. She does not allege that the ACSO Defendants stole her property. See generally Complaint, ECF No. 1; First Amended Complaint, ECF No. 109. She claims that she was deprived of her property in violation of her Fourteenth Amendment procedural due process rights.
The court previously dismissed this claim because she has an adequate post-deprivation remedy available to her under California law. 10/16/2013 Order, ECF No. 103 at 7-8. As the court explained:
Ordinarily, due process of law requires notice and an opportunity for some kind of hearing prior to the deprivation of a significant property interest. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19 (1978). But neither the negligent nor intentional deprivation of property states a due process claim under § 1983 if the deprivation was random and unauthorized. See Parratt v. Taylor, 451 U.S. 527, 53544 (1981) (state employee negligently lost prisoner's hobby kit), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional destruction of inmate's property). The availability of an adequate state post-deprivation remedy, e.g., a state tort action, precludes relief because it provides sufficient procedural due process. See Zinermon v. Burch, 494 U.S. 113, 128 (1990) (where state cannot foresee, and therefore provide meaningful hearing prior to, deprivation statutory provision for post-deprivation hearing or common law tort remedy for erroneous deprivation satisfies due process); King v. Massarweh, 782 F.2d 825, 826 (9th Cir. 1986) (same). As the ACSO Defendant's point out, California law provides such an adequate post-deprivation
remedy. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov't Code §§ 810-895). Thus, because Ms. Howard cannot state a § 1983 claim based on her "missing valuables," it must be dismissed. See Ervin v. Merced Police Dep't, No. 1:12-cv-1779 AWI GSA, 2012 WL 6517371, at *4 (E.D. Cal. Dec. 13, 2012) (because California law provided for a postdeprivation remedy, the court dismissed plaintiff's § 1983 claim based on his allegation that his property was taken during his arrest but never returned to him after he was released without bring charged). However, because it is possible that additional allegations could remedy this deficiency, see id. ("[W]here the state provides a meaningful postdeprivation remedy, only authorized, intentional deprivations constitute actionable violations of the Due Process Clause."), it is DISMISSED WITHOUT PREJUDICE.10/16/2013 Order, ECF No. 103 at 7-8 (emphasis in original).
Ms. Howard's new allegations do not save her claim. She alleges nothing to suggest that the deprivation was not random and unauthorized, and as the court pointed out previously and at the January 16, 2014 hearing, she has an adequate post-deprivation remedy available to her under California law. Accordingly, the court DISMISSES WITH PREJUDICE Ms. Howard's Fourteenth Amendment "missing valuables" claim.
C. Ms. Howard's Monell Claim Must Be Dismissed
The court previously dismissed Ms. Howard's Monell claim against the ACSO. It explained:
Local governments are "persons" subject to liability under 42 U.S.C. § 1983 where official policy or custom causes a constitutional tort. See Monell, 436 U.S. at 690. However, a city or county may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior. See Board of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). To impose municipal liability under § 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff possessed a constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy is the moving force behind the constitutional violation. See Plumeau v. School Dist. # 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).
Liability based on a municipal policy may be satisfied in one of three ways: (1) by alleging and showing that a city or county employee committed the alleged constitutional violation under a formal governmental policy or longstanding practice or custom that is the customary operating procedure of the local government entity; (2) by establishing that the individual who committed the constitutional tort was an official with final policymaking authority, and that the challenged action itself was an act of official governmental policy which was the result of a deliberate choice made from among various alternatives; or (3) by proving that an official with final policymaking authority either delegated policymaking authority to a subordinate or ratified a subordinate's unconstitutional decision or action and the basis for it. See Fuller, 47 F.3d at 1534; Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992).
Ms. Howard's conclusory allegations do not establish a claim against the individual sheriffs, and thus they fail against the ACSO on a Monell theory. Even if
she stated a claim against the individuals, her allegations are the mere recitation of the basic elements of a Monell claim that do not suggest any plausible claim for relief. See AE ex rel. Hernandez v. City of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). Still, given the court's dismissal without prejudice of the claims against Deputies Dalisay and Cullen, the court DISMISSES WITHOUT PREJUDICE the Monell claim against the ACSO.10/16/2013 Order, ECF No. 103 at 8-9 (emphasis in original). In her First Amended Complaint, Ms. Howard adds no new allegations that suggest that the ACSO is liable under Monell, and the court has now dismissed with prejudice her claims against Deputies Dalisay and Cullen. Thus, the court's reason for dismissing her claim still applies. Accordingly, Ms. Howard's Monell claim against the ACSO is DISMISSED WITH PREJUDICE.
CONCLUSION
The court GRANTS Defendants' motions to dismiss as DISMISSES WITH PREJUDICE all of Ms. Howard's claims. The Clerk of the Court shall close the file.
IT IS SO ORDERED. Dated: January 16, 2014
/s/_________
LAUREL BEELER
United States Magistrate Judge