Opinion
No. 2:15-cv-00801-JAM-EFB
07-06-2016
BRETT PETERSON, D.D.S.; B.O.L.T., an unincorporated association of motorcycle riders and enthusiasts; JOHN DALKE, an individual; MARK TEMPLE, an individual, Plaintiffs, v. JOSEPH A. FARROW, Commissioner California Highway Patrol; MICHAEL GOOLD, in his official capacity as Chief of Police of the City of Rancho Cordova; SCOTT R. JONES, in his official capacity as the Sheriff of County of Sacramento; ROBERT DIMICELI a.k.a. ROBERT DI MICELI, Officer of the California Highway Patrol; STEPHEN CARROZZO, Rancho Cordova police officer and Deputy Sheriff; KAMALA HARRIS, in her official capacity as California Attorney General, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS FARROW AND DIMICELI'S MOTION TO DIMISS PLAINTIFFS' SECOND AMENDED COMPLAINT
Plaintiffs Brett Peterson, B.O.L.T. (short for, "Bikers of Lesser Tolerance"), John Dalke, and Mark Temple sued the following Defendants—Sheriff of the County of Sacramento Scott R. Jones in his official capacity, Chief of Police of the City of Rancho Cordova Michael Goold in his official capacity, and Rancho Cordova Police Officer Stephen Carrozzo in his individual capacity (collectively, "Municipal Defendants"); California Highway Patrol Officer Robert Dimiceli in his individual capacity, and California Highway Patrol Commissioner Joseph A. Farrow in his official capacity (collectively, "State Defendants"); and California Attorney General Kamala Harris in her official capacity ("Defendant Harris")—under 42 U.S.C. § 1983 for alleged violations of the First, Second, Fourth, and Fourteenth Amendments to the United States Constitution.
State Defendants move to dismiss and/or strike claims in Plaintiffs' Second Amended Complaint (SAC) (Doc. #44) under Federal Rules of Civil Procedure ("Rules") 8 and 12(b)(6), (Doc. #54). For the reasons stated below, State Defendants' motion is GRANTED in part and DENIED in part.
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for May 17, 2016.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
"Plaintiffs Peterson, Dalke, and Temple . . . are individuals with a class M1 motorcycle license who, at all times relevant herein, resided in the State of California." SAC ¶ 10. "Plaintiff B.O.L.T. is an unincorporated association of motorcycle riders and enthusiasts[,]" "focusing on the unconstitutional enforcement [and constitutionality] of helmet laws . . . ." Id. ¶¶ 11, 13.
Plaintiffs allege that "Defendants have an unwritten policy, custom[,] and practice of allowing officers to stop motorcyclists and issue citations for substandard helmets based on visual criteria, and the officer's subjective opinion of whether the helmet would, if tested, conform to federal safety standards[,]" id. ¶ 44, "regardless of whether the officer has tangible and documentary evidence to believe that (i.) there has been a determination of non-compliance with [Federal Motor Vehicle Safety Standard (FMVSS)] 218[, 49 C.F.R. § 571.218 (2011), the federal standard establishing minimum performance requirements for motorcycle helmets], or (ii.) that the motorcyclist has knowledge that the helmet has been determined not to comply with FMVSS 218[,]" id. ¶ 46. Plaintiffs allege they "have been cited for wearing helmets that [D]efendants' officers considered to be in violation of the helmet law," as a result of this unwritten policy, custom, and practice. Id. ¶ 47.
On April 10, 2015, Plaintiffs brought this action against Defendants (Doc. #1) and on July 1, 2015, Plaintiffs filed their First Amended Complaint ("FAC," Doc. #5). In response, Defendants filed motions to dismiss (Doc. ##13, 18) and the Court granted the motions under Rule 8, giving Plaintiffs leave to amend (Doc. #42). On March 3, 2016, Plaintiffs filed their SAC (Doc. #44). The SAC states nine causes of action brought under 42 U.S.C. § 1983 of which the first three claims are brought specifically against one or more of the State Defendants: (1) injunctive and declaratory relief against Defendant Farrow for Fourth Amendment violations; (2) damages against Dimiceli and Carrozzo for conspiracy and Fourth Amendment violations; and (3) damages against Dimiceli and Carrozzo for First Amendment violations. The Court now addresses the merits of State Defendants' motion to dismiss these three claims (Doc. #54).
II. OPINION
A. Judicial Notice
State Defendants request that the Court take judicial notice (Doc. #56) of the following documents: Exhibit A-"California Highway Patrol (CHP) General Order 100.68, Chapter 4-3, also known as CHP's 'Enforcement Policy'," id. at 2:4-7; Exhibit B-"[t]he contents of California Penal Code Sections cited in Attorney General Harris's Motion to Dismiss[,]" id. at 2:8-9; and Exhibit C-"[t]he contents of three publicly available webpages: (a) https://oag.ca.gov/firearms/exemptpo, posted on the Attorney General's website . . .; (b) http://www.boltofca.com/files/Enforcement Policy.pdf, posted on Plaintiff B.O.L.T.'s website; and (c) http://www.boltofca.com/NutsandBolts.html, posted on Plaintiff B.O.L.T.'s website[,]" id. at 2:10-15. Plaintiffs do not oppose State Defendants' request. Exhibit A is a judicially noticeable public record, and State Defendants' request for judicial notice is GRANTED. See United States v. Thornton, 511 F.3d 1221, 1229 n.5 (9th Cir. 2008) (taking judicial notice of a Bureau of Prisons policy statement). The documents in Exhibit B are part of the record in this case, and the request is DENIED as unnecessary. State Defendants' request for judicial notice of Exhibit C—publicly available webpages—is GRANTED "but not for the truth of [the webpages'] contents." Brodsky v. Yahoo! Inc., 630 F. Supp. 2d 1104, 1111 (N.D. Cal. 2009); see also United States v. Kane, No. 2:12-cr-250-JAD-VCF, 2013 WL 5797619, *9 (D. Nev. Oct. 28, 2013) (citations omitted) ("When a court takes judicial notice of publications like websites and newspaper articles, the court merely notices what was in the public realm at the time, not whether the contents of those articles were in fact true.").
B. Analysis
1. Motion to Dismiss Under Rule 8
State Defendants contend that all three claims against them in Plaintiffs' SAC should be dismissed for failure to abide by Rule 8(d)(1)'s requirement that "[e]ach allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). The Court disagrees and finds that the SAC meets the minimal requirements of Rule 8 by identifying which claims are being brought against which defendants. State Defendants' motion to dismiss under Rule 8 is therefore denied.
2. Fourth Amendment Violations
State Defendant Farrow seeks dismissal of Plaintiffs' first claim for relief—that he violated Plaintiffs' Fourth Amendment right to be free from unlawful seizure by effectuating an unlawful practice and policy amongst California Highway Patrol (CHP) in the stopping and citing of motorcyclists for suspected helmet law violations—under Rule 12(b)(6) for failure to state a viable claim.
a. CHP's Stop Policy
State Defendants contend: "Even if [Plaintiffs'] bare allegation [challenging CHP's policy for stopping motorcyclists] w[as] taken as both true and sufficient, a policy of stopping motorcyclists on the basis of 'visual criteria' nonetheless meets the Fourth Amendment standard for reasonable suspicion." Def. Farrow & Def. Dimiceli's Mot. to Dismiss ("Mot.") 7:12-14, ECF No. 54-1.
Plaintiffs allege in their SAC that "Defendants have an unwritten policy, custom[,] and practice of allowing officers to stop motorcyclists . . . for substandard helmets based on visual criteria." SAC ¶ 45.
In Easyriders Freedom F.I.G.H.T. v. Hannigan, the Ninth Circuit held that "an officer need not have a particularized suspicion that a motorcyclist has actual knowledge that his helmet does not comply with [FMVSS] 218 if other objective evidence, such as the appearance of the helmet, sufficiently supports an investigatory stop." 92 F.3d 1486, 1497 (9th Cir. 1996). Because Easyriders holds that "the CHP may stop motorcyclists based on the appearance of their helmets[,]" Plaintiffs have failed to plead a claim related to the stopping of motorcyclists that entitles them to relief and cannot do so under the governing law. See id. State Defendants' motion to dismiss is granted with prejudice as to the CHP's policy of stopping motorcyclists based on visual criteria.
b. CHP's Policy for Citing Motorcyclists
1. Written Policy
State Defendants contend that "[s]ince [the] Easyriders [decision], CHP has adopted a formal written policy that limits helmet law citations to situations when probable cause is well- established." Mot. 8:16-17.
CHP's Enforcement Manual states that enforcement of the helmet law is limited to when a motorcyclist is (a) "not wearing any type of head covering," or (b) "wearing a head covering which is obviously not a motorcycle helmet, such as a Styrofoam bicycle helmet, football helmet, ball cap, scarf, stocking cap, leather aviator cap, or any variation of a fabric cap, et al." Ex. A—CHP General Order 100.68, Chapter 4-3, § 2(c)(8).
Plaintiffs do not challenge this official policy nor do they dispute its compliance with the Fourth Amendment. However, Plaintiffs still allege that CHP has an "unwritten" policy or custom allowing unlawful citations to be issued. SAC ¶ 45.
2. Unwritten Policy
State Defendants contend that "the SAC contains nothing more than conclusory allegations of unconstitutionality and formulaic recitations of the elements of the probable cause standard outlined in Easyriders, namely that CHP policy allows officers to cite motorcyclists without regard to actual knowledge of non-compliance and 'leaves it up to [the citing] officer[']s use of good judgment' about compliance with the [helmet] law." Mot. 10:9-13. State Defendants argue that "[m]issing from the [SAC] are any allegations that CHP officers lacked probable cause to believe that Plaintiffs had actual knowledge to justify any citations[,]" id. at 11:12-14; the SAC contains, "at best, allegations of sporadic and isolated events that cannot, as a matter of law, establish a widespread practice throughout CHP of constitutional violations[,]" id. at 12:2-4; and "Plaintiffs fail to allege any specific facts to support their bare assertion that Defendant Farrow failed to train CHP officers[,]" id. at 14:5-7.
Plaintiffs respond: "The pleadings are very detailed about defendant policymaker's lack of action and persistent abuse, even when complaints are lodged against individual officers." Opp'n to Mot. ("Opp'n") 3:19-20, ECF No. 59.
In Easyriders, the Ninth Circuit held that in order to issue a citation "the ticketing officer must have probable cause to believe that the specific intent, caused by the motorcyclist's actual knowledge of non-conformity, exists." 92 F.3d at 1499.
A plaintiff seeking to impose liability on a local entity under § 1983 is required "to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury." Bd. of Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 403 (1997); Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). "[T]o establish an official policy or custom sufficient for Monell liability, a plaintiff must show a constitutional right violation resulting from (1) an employee acting pursuant to an expressly adopted official policy; (2) an employee acting pursuant to a longstanding practice or custom; or (3) an employee acting as a 'final policy maker.'" Delia v. City of Rialto, 621 F.3d 1069, 1081-82 (9th Cir. 2010); rev'd on other grounds Filarsky v. Delia, 132 S. Ct. 1657 (2012).
Absent a formal governmental policy, [a plaintiff] must show a "longstanding practice or custom which constitutes the standard operating procedure of the local government entity." Gillette[v. Delmore], 979 F.2d [1342,] 1346-47 [(9th Cir. 1992)]. The custom must be so "persistent and widespread" that it constitutes a "permanent and well settled city policy." Monell v. Dept. of Soc. Serv. of N.Y., 436 U.S. 658, 691 . . . (1978). Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of
sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984); see also, Meehan v. [L.A. Cty.], 856 F.2d 102 (9th Cir. 1988) (two incidents not sufficient to establish custom); Davis v. Ellensburg, 869 F.2d 1230 (9th Cir. 1989) (manner of one arrest insufficient to establish policy).Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). In order to survive dismissal, Monell allegations must "identify . . . specific policies or customs, explain how those policies or customs were deficient, [and] explain how they specifically caused plaintiff harm." Rodelo v. City of Tulare, No. 1:15-cv-01675-KJM-BAM, 2016 WL 561520, at *4 (E.D. Cal. Feb. 12, 2016).
The SAC contains the following pertinent allegations: "[D]efendant Farrow had actual knowledge of CHP statewide Enforcement Guidelines since at least 1995 as mandated by [Easyriders,]" SAC ¶ 61; "[D]efendant Farrow has intentionally disregarded the constitutional limitations on helmet law enforcement, and by inaction and failing to discipline, allowed CHP officers to cite motorcyclists for violation of the helmet law without probable cause[,]" id. ¶ 66; Peterson was wrongfully arrested and filed an internal affairs complaint to the CHP, id. ¶¶ 68, 69; "[a]ll [D]efendants have been placed on notice of the violations by way of internal affairs complaints[,]" id. ¶ 80; "Defendants have failed to provide their officers with any list of helmets which have been tested and have failed the DOT Certification[,]" id. ¶ 81; and "Defendants have failed to provide their officers with any training with respect to the collection of evidence necessary to support a [h]elmet [t]icket[,]" id. ¶ 82.
The Court finds that Plaintiffs' allegations fail to sufficiently identify specific instances of purported misconduct from which it can be inferred that the CHP has an unwritten custom or policy which systematically condones or endorses the improper citing of motorcyclists; instead Plaintiffs' SAC alleges isolated events from which no inference can be drawn that the practice violates the requirements set forth in Easyriders or is widespread.
With respect to Plaintiffs' failure to train theory of liability, the Court finds that Plaintiffs have failed to set forth facts that demonstrate that the CHP acted with "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact." See City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). A policy amounts to deliberate indifference "'when the need for more or different action 'is so obvious, and the inadequacy [of the current procedure] so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need.''" Mortimer v. Baca, 594 F.3d 714, 723 (9th Cir. 2010) (alterations in original) (quoting Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1477-78 (9th Cir. 1992) (quoting Harris, 489 U.S. at 390)). Plaintiffs allege that the CHP fails to provide officers with a list of decertified helmets and fails to provide training on the collection of evidence necessary to support a "Helmet Ticket." SAC ¶¶ 81-82. Taken as true, these allegations are still insufficient and irrelevant. The Court also finds State Defendants' arguments persuasive. First, "given CHP's official policy of citing motorcyclists only if they do not wear any motorcycle helmets, a failure to provide officers with a list of de-certified motorcycle helmets is not an 'obvious' deficiency[,]" Mot. 15:2-5, and second, "[a]n officer can easily have grounds to issue a ticket without training on collecting the evidence to support a ticket challenged later in court," id. at 15:8-10.
For the above stated reasons, Plaintiffs' allegations fail to set forth a claim against Farrow upon which relief can be granted, and State Defendants' Motion to Dismiss the first claim against Farrow is granted with prejudice.
c. Conspiracy
State Defendants also contend that Plaintiffs' conspiracy allegation in paragraph 115 of their second claim for relief should be dismissed. Specifically, State Defendants argue: "The SAC contains no allegation, nor can it, that enforcement of the helmet law is designed to deprive a protected class of the same rights enjoyed by others[,]" as required to successfully assert a conspiracy claim under 42 U.S.C. § 1985(3). Mot. 21:23-24. State Defendants also argue that there is "no allegation that Officer Dimiceli was motivated by a racial, or perhaps otherwise class-based, invidiously discriminatory animus." Id. at 21:26-27.
Plaintiffs brief response in opposition to this argument states in a conclusory fashion that "Plaintiffs make it perfectly clear that they were subjected to unconstitutional targeted enforcement of the state's helmet law[;] Defendants Dimiceli and Carrozzo have shown great animus towards Plaintiffs and specifically mention B.O.L.T. at each contact." Opp'n 8:3-6.
To bring a cause of action successfully under § 1985(3), Plaintiffs must allege four elements: "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). To satisfy the second element requires not only the identification of a legally protected right, but also a deprivation of that right motived by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). "Generally, . . . section 1985(3) is extended beyond race 'only when the class in question can show that there has been a governmental determination that its members 'require and warrant special federal assistance in protecting their civil rights.''" Sever, 978 F.2d at 1536 (quoting Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir.1985) (quoting DeSantis v. Pac. Tel. & Tel. Co., 608 F.2d 327, 333 (9th Cir.1979))). Thus, in attempting to bring a cause of action under § 1985(3), plaintiffs must show that they are in a class that the courts have designated as a suspect or quasi-suspect class "requiring more exacting scrutiny or that Congress has indicated through legislation that the class required special protection." Id. The term "class," as used in the statute "unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993); Orin v. Barclay, 272 F.3d 1207, 1217 n.4 (9th Cir. 2001). The conspiracy in question must specifically "aim at a deprivation of the equal enjoyment of rights secured by the law to all." Orin, 272 F.3d at 1217 (quoting Griffin, 403 U.S. at 102).
Plaintiffs have not cited § 1985(3) as the basis for their conspiracy claim. Rather, they have simply alleged that: "Based upon information and belief, Dimiceli and Carrozzo have conspired to violate Plaintiffs' rights be using the helmet law as a vehicle to violate Plaintiffs' Fourth Amendment right to be free from unreasonable search and seizures." SAC ¶ 115. To the extent Plaintiffs intended this paragraph to be a separate claim for conspiracy, the claim fails since Plaintiffs have not alleged that Dimiceli and Carrozzo were motivated by racial, or some other class-based, invidiously discriminatory animus. All motorcycle riders are subject to helmet laws and motorcycle riders have not been singled out by the government as needing enhanced federal protection. Plaintiffs' conspiracy allegation in their second claim is therefore dismissed with prejudice.
3. First Amendment Retaliation
State Defendants contend that Plaintiffs' third claim for relief-- alleging Dimiceli committed First Amendment violations by retaliating against Temple and Peterson for engaging in protected First Amendment activity--should be dismissed for failure to state a claim upon which relief can be granted.
In order to state a First Amendment retaliation claim under § 1983, Plaintiffs "must establish that (1) [they] engaged in [First Amendment activity]; (2) the government officials took an adverse action against [them]; and (3) [their protected conduct] was a substantial or motivating factor for the adverse action." Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir. 2004) (citing Roe v. City of San Diego, 356 F.3d 1108, 1112 (9th Cir. 2004)). The above test has traditionally been applied in the context of public employment, but a similar analysis is appropriate in situations such as here where the parties do not share an employment relationship. See Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994); see also Mendocino Envtl. Ctr. v. Mendocino Cty., 14 F.3d 457, 459-60 (9th Cir. 1994); Cain v. Tigard-Tualatin School Dist. 23J, 262 F. Supp. 2d 1120, 1125 n.1 (D. Or. 2003) (applying test found in context of public employment to non-employment First Amendment retaliation claim).
As a preliminary matter, Plaintiffs allege that Dimiceli and Carrozzo "have been in communication with each other, sharing filed notes and research on members of B.O.L.T., or purported members." SAC ¶ 160. Further, "Dimiceli and Carrozzo have conspired to violate Plaintiffs' First Amendment associational rights by using the helmet law as a vehicle to punish [P]laintiffs . . . ." Id. ¶ 161. The above allegations are conclusory and not accepted as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (A court is not required to accept as true a "legal conclusion couched as a factual allegation.") The Court will thus consider the plausibility of Peterson and Temple's First Amendment retaliation claims against Dimiceli separately.
a. Peterson's Claim Against Dimiceli
Plaintiff Peterson's claim against Dimiceli appears to be premised only on freedom of association. The SAC alleges that Peterson was arrested by Dimiceli based on a perceived association with B.O.L.T. State Defendants contend that "no allegations in the SAC . . . identify any way in which Officer Dimiceli has allegedly prevented Plaintiff[] Peterson . . . from associating with . . . other[s] for motorcycle rides or any other activity in which [Plaintiffs] allege B.O.L.T. engages." Mot. 18:5-8. State Defendants also argue that "there is no constitutional right to 'social association.'" Id. at 18:11 (citing Kohlman v. Village of Midlothian, 833 F. Supp. 2d 922, 939 (N.D. Ill. 2001)). Further, State Defendants contend that Peterson's claim should be dismissed because as the SAC alleges, "Peterson . . . was not a member of B.O.L.T. nor an associate of Temple and Dalke[,]" id. at 18:22-23 (citing SAC ¶ 146); "[i]t stands to reason that Peterson's right to associate with B.O.L.T. could not have been violated when he was not a member of B.O.L.T. and not associating with B.O.L.T. in the first place[,]" id. at 18:23-25.
As to State Defendants' first argument, expressive association involves association "for the purpose of engaging in protected speech or religious activities." Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 544 (1987); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (protection for collective "pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends"). While the State Defendants cite Kohlman, 833 F. Supp. 2d at 937, in support of their argument, their reliance on this case is misplaced. In Kohlman, the court found that "[t]he plaintiffs . . . [did] not identify any expressive activity as they [had] not pointed to any political, religious, or other viewpoints advocated or commonly held by members of the Chicago Chapter of the Hells Angels Motorcycle Club." Id. Unlike the allegations in Kohlman, in the instant case, Plaintiffs' allegation that "B.O.L.T. is . . . a civil rights organization focusing on the unconstitutional enforcement . . . [and] constitutionality of helmet laws." (SAC ¶ 4) is sufficient to avoid dismissal simply on the basis of Kohlman.
State Defendants' next argument that this claim should be dismissed because Peterson did not actually associate with B.O.L.T., also fails because the Supreme Court recently held that in a freedom of association case a plaintiff need not engage in actual First Amendment activity so long as defendants perceived, and were unlawfully motivated by, protected conduct. Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412, 1418 (April 26, 2016) ("When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983—even if, as here, the employer makes a factual mistake about the employee's behavior."). Accordingly, it is immaterial whether Peterson associated with B.O.L.T. before the issuance of motorcycle citations so long as Dimiceli mistakenly believed he was engaged in such association and was motivated by unlawful aims when citing Peterson. Thus, dismissal based only upon the fact that Peterson was not associated with B.O.L.T. is not warranted.
However, in order for Peterson's claim against Dimiceli to survive, Peterson must still demonstrate the requisite causal connection between his perceived expressive association and the citations that were issued to him by Dimiceli. In attempting to satisfy this requirement, Plaintiffs have alleged that Dimiceli specifically referenced B.O.L.T., Temple and Dalke when he arrested Peterson. But, Peterson was cited for failing to comply with helmet law requirements, and Dimiceli's alleged off-hand comments about B.O.L.T. do not show that he was motivated by any unlawful retaliatory aims. Contrary to Plaintiffs' conclusory allegation, associational animus is not evident from this fact alone. Plaintiffs have failed to provide sufficient specific factual allegations to support a plausible inference that Peterson's perceived membership in B.O.L.T. substantially motivated Dimiceli to arrest him. Plaintiffs have been given three chances to properly plead this claim and any further attempt to amend would be futile. Peterson's claim against Dimiceli for First Amendment retaliation is dismissed with prejudice.
b. Temple's Claim Against Dimiceli
In support of their motion to dismiss Temple's First Amendment claim against Dimiceli, State Defendants argue that the claim cannot be based on Temple's freedom of association because "there are no specific allegations by Temple that Officer Dimiceli's citations/arrest of him were based on association with B.O.L.T." Mot. 19:5-7. Further, "there are no allegations of conduct specific to Officer Dimiceli concerning any associational animus to Temple" and "the sweeping conclusions are insufficient to state a claim." Id. at 19:7-8.
State Defendants also argue that Temple's retaliation claim based on his right to petition should be dismissed for the following reasons: "the citations occurring before the [filing of Temple's] internal affairs complaint could not have been in retaliation for the subsequently submitted internal affairs complaint[,]" id. at 19:27-28; the 2010 events "are outside the prevailing two-year statute of limitation, making them unviable as basis for a cause of action[,]" id. at 20:1-2; and "to the extent Temple would try to argue that the May 2013 arrests were in retaliation for the June 2010 internal affairs complaint, the three-year period in between fails to satisfy the requirement that the internal affairs complaint filing was the motivating or substantial factor in Temple's arrests three years later[,]" id. at 20:10-13.
Plaintiffs' opposition does not directly address these arguments and, instead, merely repeats Temple's allegations in the SAC or focuses primarily on Temple's claim against Defendant Carozzo rather than Defendant Dimiceli. Indeed, the opposition spends four paragraphs talking about apparent actions of Carrozzo, not Dimiceli, and mixes in Plaintiff Dalke, who has made no claim against Officer Dimiceli.
Plaintiffs have failed to plausibly allege that any First Amendment activity caused Dimiceli to issue citations to or arrest Temple. Temple's internal affairs complaints were filed after each arrest not before and thus could not have motivated such behavior. Further, the three year gap between Temple's 2010 complaint and 2013 arrests renders it implausible that any First Amendment activity was a substantial motivating factor in Dimiceli's issuance of helmet citations. No actionable retaliation by Dimiceli against Temple has been properly alleged in the SAC and any further attempt to amend this claim would be futile. Temple's claim against Dimiceli for First Amendment retaliation is therefore dismissed with prejudice.
d. Qualified Immunity
State Defendants argue that Officer Dimiceli is entitled to qualified immunity from Peterson and Temple's First Amendment claims. Since the Court above finds that Plaintiffs have failed to plausibly allege any claim against Dimiceli for First Amendment retaliation, the Court need not, and does not reach this issue. /// ///
III. ORDER
For the reasons set forth above, the Court DENIES State Defendants' Motion to Dismiss under Rule 8; the Court GRANTS WITH PREJUDICE State Defendants' Motion to Dismiss Plaintiffs' first cause of action against Defendant Farrow; the Court GRANTS WITH PREJUDICE State Defendants' Motion to Dismiss Plaintiffs' conspiracy allegation in the second cause of action; and the Court GRANTS WITH PREJUDICE State Defendants' Motion to Dismiss Plaintiffs' third cause of action against Defendant Dimiceli. The only remaining claim against either of these State Defendants is Plaintiffs second cause of action against Defendant Dimiceli for alleged Fourth Amendment unlawful seizure violations. Defendant Dimiceli shall file his answer to this claim within twenty days of the date of this Order.
IT IS SO ORDERED. Dated: July 6, 2016
/s/ _________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE