Opinion
Case No. 01-8244-RMT(Ex)
October 2, 2002
ORDER PARTIALLY GRANTING AND PARTIALLY DENYING MOTION TO DISMISS FILED BY POLICE OFFICERS MEDEROS, WONG AND HOLTZ
This matter comes before the court on the motion to dismiss complaint filed by Defendant police offers CARMEN MEDEROS, LISA WONG and GERALD HOLTZ (collectively, "Defendants"). The court, having considered the pleadings and other documents filed herein, now determines:
The statement of facts is based on allegations contained in the complaint, the truth of which is presumed for purposes of analyzing a motion to dismiss. Keiter v. Penn Mut. Ins. Co., 900 F. Supp. 1339 (D.Hawai'i 1995) (in considering motion to dismiss for failure to state claim upon which relief can be granted, all allegations of material fact are taken as true and construed in light most favorable to plaintiff).
On June 14, 1997, Plaintiff H. Slade ("Plaintiff") was falsely arrested after a phony reverse sting operation during which Defendants planted illegal drugs on Plaintiff and arrested him. See Complaint at ¶ 16. Thereafter, Officers Auerbach, Deuel and Holtz participated in the continued false arrest, detention, and processing of Plaintiff, thereby conspiring to complete the false charges. See Complaint at ¶ 16. Plaintiff pled guilty to false drug possession charges and was subsequently incarcerated. See Complaint at ¶ 18.
Officers Anderson, Auerbach and Deuel are not parties to this motion to dismiss.
Defendants now move to dismiss the following counts in the complaint:
1. Count Two, which alleges that Defendants conspired to violate 28 U.S.C. § 1983 ("Section 1983"). See Complaint at ¶ 26. Defendants seek dismissal of this count on the ground that this claim contains conclusory allegations.
2. Count Three, which alleges a policy, practice, procedure, and custom of Fourth and Fourteenth Amendment violations (see Complaint at ¶¶ 28-29) and Count Four, which alleges a conspiracy to indemnify LAPD officers. See Complaint at ¶¶ 30-40. Defendants seek dismissal of these counts on the ground that Defendants are not alleged to be official policymakers.
3. Count Five, which is a prayer for declaratory relief, to declare that defendants have engaged in a practice of Section 1983 violations (see Complaint at ¶ 41) and Count Six, which is a prayer for injunctive relief, to enjoin defendants from engaging in the wrongful behavior alleged. See Complaint at ¶ 42-53. Defendants seek dismissal of these counts on the ground that Plaintiff lacks standing.
4. Count 7, which alleges that Defendants committed violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961-1968 ("RICO") (see Complaint at ¶¶ 54-65) and Count 8, which alleges a conspiracy to violate RICO. Defendants seek dismissal of these counts on the ground that Plaintiff fails to allege standing, a predicate act, and a pattern of racketeering activity — all prerequisites to state a RICO claim.Motion to Dismiss Standard:
Failure to state a claim upon which relief can be granted is a valid basis for a motion to dismiss. See Fed.R.Civ.P. 12(b)(6). Furthermore, review of the sufficiency of a complaint is limited to the "contents of the complaint." Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
1. Has Plaintiff sufficiently pled a conspiracy to violate Section 1983?
Where conspiracy to violate constitutional rights is alleged, plaintiffs must provide "nonconclusory allegations setting forth evidence of unlawful intent." Branch v. Tunnell, 937 F.2d 1382, 1386-87 (9th Cir. 1991). "Where a complaint contains merely conclusory, vague or general allegations of a conspiracy to deprive a person of constitutional rights, it must be dismissed." Buckley v. Gomez, 36 F. Supp.2d 1216, 1221 (S.D. Cal. 1997). Defendants contend that Count Two should be dismissed because specific allegations of unlawful intent are absent therefrom. Defendants further suggest that there are no specific facts linking each individual defendant to a constitutional violation and, therefore, the conspiracy count should be dismissed.
Allegations of unlawful intent may be supported by circumstantial evidence. See Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997). In Harris, the plaintiff pleaded nonconclusory allegations sufficient to survive a motion to dismiss when he alleged that several defendants met and discussed the Special Rules of Engagement leading to a conspiracy to violate Harris's Fourth Amendment rights. See Harris, 126 F.3d at 1200. Here, Plaintiff specifically alleged that Defendants conspired to falsely arrest and incarcerate him, and alleged that the officers engaged in the same unconstitutional conduct in fourteen other cases set forth in the Complaint. See Complaint at ¶ 22. Although a meeting is not specifically alleged by Plaintiff in the instant case, it is reasonable to infer that the police officers tacitly agreed to falsely arrest Plaintiff since all officers on the scene are alleged to have participated in the violation. See Arkansas-Platte Gulf Partnership v. Dow Chemical Co., 886 F. Supp. 762 (D.Colo. 1995) (on motion to dismiss for failure to state a claim, court must accept all factual allegations as true and must draw all reasonable inferences in favor of plaintiff). Additionally, the allegations regarding similar constitutional violations by the same defendants in fourteen other cases support the conspiracy claim. Finally, the allegation that a "sting operation" took place provides circumstantial evidence of a prior meeting during which the operation was organized. Accordingly, Count Two states a claim for conspiracy to violate Section 1983.
2. Are Defendants "official policymakers" against whom official capacity claims may be alleged?
The issue raised here is whether or not an official capacity claim may be brought against Defendants where they are not alleged to be official policymakers. The complaint states: "[e]ach and every defendant who is a natural person is sued in both his/her individual/personal capacity, as well as in his/her official capacity." Complaint at ¶ 5. Defendants seek dismissal of Counts Three and Four, which allege official-capacity claims against Defendants, because Defendants are not alleged to be official policymakers.
Official capacity suits represent another way of pleading an action against an entity of which an officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). It is not only unnecessary and duplicative to name an officer in his official capacity after being named in his personal capacity, but it is improper. Luke v. Abbott, 954 F. Supp. 202, 204 (C.D.Cal. 1997). Thus, if an officer is sued both in his personal and official capacities, "it would be proper for the court, upon request to dismiss the officer and substitute instead the local government entity as the correct defendant." Id. Accordingly, in two recent cases involving police misconduct in violation of Section 1983, the Chief of Police was deemed to be a representative of the City since the acts of all defendants could be traced back to events which occurred with LAPD officers on the scene. Bell v. Gates (2001 U.S. Dist. LEXIS 12474 at 24) and Lee v. Gates (2001 WL 1098070, *4) (C.D.Cal.). Thus, Chief of Police Bernard Parks, the head of the LAPD, is the appropriate representative of the local government entity to be sued in an official capacity. Since Chief Parks is already named as a defendant in his official capacity, the court shall grant Defendants' motion to dismiss Counts Three and Four against Defendants in their official capacities.
3. Does Plaintiff have standing to seek declaratory and injunctive relief?
The issue here is whether or not Plaintiff may seek declaratory and injunctive relief for constitutional violations suffered at the hands of Defendants when Plaintiff has not sufficiently alleged that he will imminently suffer similar violations in the future. In Count Five, Plaintiff claims he is entitled to a declaration that Defendants engage in a practice of violating constitutional rights. See Complaint at ¶ 41. Plaintiff must demonstrate that a "credible threat" exists that he will again be subject to the specific injury for which he seeks injunctive or declaratory relief. Kolender v. Lawson, 461 U.S. 352, 355 n. 3 (1983). The "mere physical or theoretical possibility" of a challenged action again affecting a plaintiff is not sufficient. Murphy v. Hunt, 455 U.S. 478, 482 (1982). There must be a "demonstrated probability" that plaintiff will again be among those injured. Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The allegations contained in Count Five do not state a credible threat or demonstrated probability that Plaintiff will suffer future constitutional injuries at the hands of Defendants. See Complaint at ¶ 41. Therefore, Defendants' motion to dismiss Count Five shall be granted.
Count 5, contained in Paragraph 41 of the Complaint, states:
Pursuant to 28 U.S.C. [§] 2201, plaintiff is entitled to a declaration by the court that there is a custom, pattern and practice of Fourth and Fourteenth Amendment violations including planting of evidence, coercing confessions from innocent persons, coercing guilty or no contest pleas to criminal charges from innocent persons, lying in police reports, causing false convictions of innocent persons, making illegal threats to suspects, making illegal threats to witnesses, making false arrests, conducting illegal searches, making illegal seizures, making false warrant applications, using excessive force, lying under oath, suborning perjury, lying as witnesses, obstructing discovery of police criminal conduct, covering-up illegal police activity, participating in a code of silence, and of the pattern and practice alleged in Count Four, immediately hereinabove, and of agreeing and conspiring to do these things.
In Count Six, Plaintiff claims he is entitled to an injunction enjoining Defendants from engaging in the wrongful conduct alleged. See Complaint at ¶ 42. Plaintiff alleges there are "continuing and present adverse affects and effects of the LAPD activities, and they cause future threatened injuries to be real and immediate." Complaint at ¶ 49. He further alleges "there is a real and immediate threat of serious injury and of death which presents a justiciable controversy." Complaint at ¶ 52. Defendants move to dismiss this count because Plaintiff has not alleged that he faces a realistic threat of future constitutional violations by LAPD officers.
"It goes without saying that those who seek to involve the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy."Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). Thus, "[to maintain a claim for injunctive relief] the plaintiff must show that he `has sustained or is immediately in danger of sustaining some direct injury' as a result of the challenged official conduct and the injury or threat of injury must be both `real and immediate,' not `conjectural' or `hypothetical.'" Lyons, 461 U.S. at 101-102. In Lyons, the plaintiff did not have standing to sue the City for injunctive relief because, despite a past chokehold used on him by the police, he did not prove "a real and immediate threat" that he would again be "illegally choked into unconsciousness without provocation." Lyons, 461 U.S. at 105.
In the present case, Plaintiff has not sufficiently alleged the threat of another imminent arrest. In his complaint, plaintiff "and the class he represents" request "an injunction against all defendants enjoining them from engaging in the wrongful conduct" set forth. Complaint at ¶ 42. He claims "[p]laintiff and class members are suffering ongoing, pervasive, and irreparable harm in the form of violations of the Fourth and Fourteenth Amendments, and are at risk for continued violations, as a result of the illegal customs hereinabove alleged." Complaint at ¶ 44. Plaintiff further alleges "that he would be set up again by LAPD officers." Complaint at ¶ 50. Plaintiff also alleges there is "a real and immediate threat of serious injury and of death which presents a justiciable controversy." Complaint at ¶ 52.
However, "a plaintiff must do more than merely allege imminent harm sufficient to establish standing, he or she must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief."Associated General Contractors of California., Inc. v. City and County of San Francisco, 748 F. Supp. 1443 (N.D. Cal. 1990). In this case, plaintiff has not satisfied the injury in fact requirement because he has not alleged how Defendants will immediately harm him. See Lowry v. Social Security Administration, 2000 WL 730412, *16 (D.Or.). Accordingly, the motion to dismiss Count Six of the Complaint shall be granted.
4. Does Plaintiff sufficiently allege a RICO claim and a conspiracy to violate RICO?
Count Seven alleges that Defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"). 18 U.S.C. § 1961, et seq. Count 8 alleges that Defendants conspired to violate RICO. RICO authorizes a private suit by "any person injured in his business or property by reason of a violation of [18 U.S.C.] § 1962." 18 U.S.C. § 1964 (c). Defendants seek dismissal of both counts because Plaintiff fails to allege facts that would support standing, a predicate act, and a pattern of racketeering activity — all prerequisites to state a RICO claim.
Standing
To have standing to pursue either the substantive RICO claim or the RICO conspiracy claim Plaintiff must have suffered an injury to "business or property" caused by the conduct constituting the violation. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495 (1984). Plaintiff must have suffered "concrete financial loss" and not a mere "injury to a valuable intangible property interest." See Oscar v. University Students Co-op. Ass'n, 965 F.2d 783, 785 (9th Cir. 1992) and Berg v. First State Ins. Co. 915 F.2d 460, 464 (9th Cir. 1990). The loss must at least be an out-of-pocket expenditure as a direct or indirect result of the racketeering activity.
In Oscar, the tenant in an apartment building sued the student cooperative which operated a neighboring apartment building under RICO. Plaintiff alleged that drug dealing by students in the cooperative apartment diminished her rental interest (e.g., her use and enjoyment of the rental property). The court dismissed the case for lack of standing because a diminution in the plaintiff's use and enjoyment of the rental property due to racketeering activity next door was not an injury to business or property such as to maintain a RICO claim. See Oscar, 965 F.2d at 785-86.
Plaintiff alleged that he suffered "lost employment, employment opportunities, and the wages and other compensation associated with said employment and opportunities." Plaintiff also alleged that he was unable to "pursue gainful employment while defending [himself] against unjust charges and/or while unjustly incarcerated." Complaint ¶ 61. Plaintiff alleged that he suffered these injuries as a result of the false arrest by the LAPD.
Section 1983 claims for unconstitutional searches, false arrest, and false imprisonment are best characterized as personal injury actions.See Owens v. Okure, 488 U.S. 235, 240 (1989). Personal injuries are not compensable under RICO. See Oscar v. University Students Co-op. Ass'n, 965 F.2d 783, 785 (9th Cir. 1992). "RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff." Id. at 786. If Congress intended to include financial losses which extended from personal injuries, then it would have enacted a statute referring to injury generally, instead of restricting RICO recovery to business and property injuries. See Grogan v. Platt, 835 F.2d 844 (11th Cir. 1988) (RICO's private civil action provision does not permit recovery for economic aspects of personal injuries inflicted by predicate acts involving murder). Since Plaintiff's injury is alleged to be lost employment caused by his false arrest he has suffered a personal injury and not a financial loss to his business or property. See Oscar, 965 F.2d at 785-86. Accordingly, he has no standing to maintain his RICO claim.
Predicate Acts
The court also finds the RICO claims defective for failure to allege a predicate act. Section 1961 sets forth specific "predicate acts" that may constitute "racketeering activity" for a RICO violation. The complaint alleges that Defendants engaged in attempted murder, extortion, dealing in controlled substances, assault, false arrest, evidence planting and obstruction of justice. Complaint at ¶ 58. However, assault, false arrest and evidence planting do not qualify as RICO predicate acts. See 18 U.S.C. § 1961. Thus, of the foregoing offenses, only the attempted murder, extortion, obstruction of justice and drug dealing allegations qualify as predicate acts under RICO. See id.
Other than fraud, RICO predicate acts need not be pled with particularity but must be sufficiently pled to give Defendants notice of the factual basis of the claim. See e.g. Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir. 1990) (in motion to dismiss RICO complaint, "pinpointed" allegations of arson, theft, receipt of stolen property and bribery were insufficient to state a predicate act under RICO because the complaint failed adequately to allege — in facts — that the above mentioned crimes were committed); McLaughlin v. Anderson, 962 F.2d 187, 194 (2nd Cir. 1992) (extortion claim should be evaluated against the more lenient pleading standards of Rule 8(a); reviewed under this more lenient standard, plaintiff adequately pled an extortion claim because defendant's threat to lose plaintiff's requisition forms plainly amounted to a use of fear of economic loss in an effort to force plaintiff into a joint venture with defendant) and Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 945 F. Supp. 1355, 1379-80 (D.Or. 1996) (since Plaintiffs alleged RICO predicate acts involving extortion rather than fraud, their RICO claims need not be pleaded with particularity under Rule 9(b); Plaintiffs easily satisfied this liberal standard by alleging that Defendants violated the extortion and coercion statutes by issuing and disseminating publications containing threats of force against Plaintiffs in order to induce fear in Plaintiffs and "thus to force plaintiffs to forego their right to engage in lawful activity and give up their actual and prospective business relations").
Here, the complaint fails to allege any facts to support a claim of extortion, attempted murder or drug dealing. As the foregoing cases illustrate, Plaintiff's conclusory allegations that extortion, attempted murder and drug dealing were committed by Defendants, without more, is insufficient to state a predicate act under RICO. Moreover, Plaintiff fails to allege that Defendants actions of obstructing justice were committed in a federal proceeding. See O'Malley v. New York City Transit Authority, 896 F.2d 704, 708 (2nd Cir. 1990) (in defining "racketeering activity", Congress not only included obstruction of justice by reference to a specific section, § 1503, of Title 18 of the United States Code, which is expressly limited to federal court proceedings, § 1961(1)(B); but it also failed to include obstruction of justice as one of the generic state law crimes under § 1961(1)(A)) and Streck v. Peters, 855 F. Supp. 1156, 1162 (D.Hawai'i 1994) (failure to allege perjury in federal proceeding precluded using obstruction of justice as predicate offense for RICO claim). Thus, Plaintiff's allegations, even if true, would not support a charge of obstruction of justice.
Accordingly,
IT IS ORDERED that Defendants' motion to dismiss Count 2 (conspiracy to violate Section 1983) is hereby DENIED; and
IT IS FURTHER ORDERED that Defendants' motion to dismiss Counts 3 and 4 (official capacity claims) is hereby GRANTED without leave to amend; and
IT IS FURTHER ORDERED that Defendants' motion to dismiss Counts 5 and 6 (for declaratory and injunctive relief) is hereby GRANTED with leave to amend; and
IT IS FURTHER ORDERED that Defendants' motion to dismiss Counts 7 and 8 (for RICO and conspiracy to violate RICO) is hereby GRANTED with leave to amend.
IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days from the filing of this order to file an amended complaint.