Opinion
No. 01-8244-RMT(Ex)
October 21, 2002
ORDER PARTIALLY GRANTING AND PARTIALLY DENYING MOTION TO DISMISS FILED BY FORMER POLICE COMMISSIONERS
This matter comes before the court on the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) filed by Defendants Former Police Commissioners RAYMOND C. FISHER, DEIRDRE HUGHES HILL, BARBARA LINDEMANN SCHLEI, REVA TOOLEY, and ROBERT WEIL, in which STANLEY SHEINBAUM joins (herein 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.Hawaii 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 LAPD officers planted illegal drugs on Plaintiff and arrested him. See Complaint at ¶ 16. Thereafter, Plaintiff pled guilty to false drug possession charges and was incarcerated. See Complaint at ¶ 18. Plaintiff subsequently filed a petition for a writ of habeas corpus which was granted on May 25, 2001. See Complaint at ¶ 18.
Plaintiff contends that he suffered injuries as a result of Defendants having failed to investigate police misconduct and/or to discipline police officers found culpable of misconduct in this and other cases. See Complaint at ¶ 11. The complaint further alleges that Defendants failed to provide civilian oversight of the LAPD, notwithstanding their duty, power and responsibility to do so. Specifically, Defendants allegedly failed to reign in LAPD officers who, as a continuous group, caused false charges to be made against innocent persons, lied on the witness stand, and filed false police reports which, in turn, resulted in false charges leading to the conviction of Plaintiff. See Complaint at ¶¶ 12, 15. Furthermore, such actions caused a custom of Fourth and Fourteenth Amendment violations, such as the ones suffered herein by Plaintiff, to be perpetrated by and among the LAPD. See Complaint at ¶ 29. Finally, Defendants are alleged to have conspired with other co-defendants named in the above-captioned matter to do all the things alleged against them in this complaint. See Complaint at ¶ 28.
Defendants now move to dismiss the following counts in the complaint:
1. Count One, which alleges that Defendants violated 28 U.S.C. § 1983 ("Section 1983"). Defendants seek dismissal on the ground Defendants are not alleged to have personally participated nor supervised the constitutional violation committed upon Plaintiff.
2. Count Two, which alleges that Defendants conspired to violate Section 1983. See Complaint at ¶ 26. Defendants seek dismissal of this count on the ground that this claim contains conclusory allegations.
3. 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 custom of improperly indemnifying LAPD officers in police misconduct cases. See Complaint at ¶¶ 30-40. Defendants seek dismissal of these counts on the ground that the municipality, and not Defendants, is the proper Defendant on these claims.
4. 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.
5. 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, a pattern of racketeering activity, an enterprise and Defendants' participation in the management of the enterprise — 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. May Defendants be individually liable under Section 1983?
Plaintiff claims that Defendants are liable in their individual capacity for violations of Section 1983. See Complaint at ¶ 5. Individual capacity liability may attach upon Defendants' direct participation in the deprivation of constitutional rights (see Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)) or as a supervisor if he "set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known, would cause others to inflict the constitutional injury." Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).
Plaintiff contends that he suffered injuries as a result of Defendants' failure to provide civilian oversight of LAPD officers even though Defendants have the duty, power and responsibility to provide such oversight. Complaint at ¶ 15. Defendants seek dismissal on the ground that the Los Angeles City Charter confers no supervisorial authority over the LAPD upon the Police Commission. See Motion at 16:17-19. However, Section 206(a) of the Charter of the City of Los Angeles provides that "[s]ubject to the provisions of this Charter, the rules of the Police Department, and the instruction of the Board of Police Commissioners, the Chief of Police shall have the power and duty to . . . (2) appoint, discharge, discipline, transfer and issue instructions to the employees of the department . . . ." See Exh. A to Winnemore Decl. at p. 10 (Section 206(a) of the Charter of the City of Los Angeles) [emphasis added]. Thus, the City Charter imbues Defendants with the power to instruct the Police Chief on discharging or disciplining LAPD officers who are guilty of misconduct. Therefore, the allegation that Defendants' failure to exercise such power resulted in harm to the Plaintiff sufficiently states an individual capacity claim against Defendants. See Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).
Defendants next contend that the individual capacity claims against them should be dismissed since they cannot act except by majority vote.See Motion at 17:17-28. A similar argument was implicitly rejected inNavarro v. Block, 250 F.3d 729 (9th Cir. 2001) where the County Board of Supervisors' votes to indemnify county sheriffs from punitive damages awards were deemed individual actions that could form the basis for Section 1983 liability even though the Board could only act as a collective body. For all the foregoing reasons, Defendants' motion to dismiss Count 1 shall be denied.
Defendants further contend that dismissal is proper since the Complaint fails to state the dates when the Police Commissioner defendants allegedly took action or failed to take action so as to bring their conduct within the one year statute of limitations for Section 1983 claims. The statute of limitations is not an element of a Section 1983 cause of action that must be pled to survive a motion to dismiss. Gibson M. v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986) (the showing required for a § 1983 action is: "(1) the defendants acting under color of state law (2) deprived [plaintiff] of rights secured by the Constitution or federal statutes"). Accordingly, dismissal is inappropriate on this basis.
2. Has Plaintiff sufficiently alleged a conspiracy to violate Section 1983?
To sufficiently state a claim for conspiracy to violate Section 1983, an agreement or meeting of the minds to violate the Plaintiff's constitutional rights must be alleged. See Woodrum v. Woodward County Okla., 866 F.2d 1121, 1126 (9th Cir. 1989). Furthermore, allegations of conspiracy must be supported by material facts, not merely conclusory statements. See Id. Defendants contend that dismissal of Count Two is warranted because the allegations contained therein are insufficient to maintain a claim for a Section 1983 conspiracy.
The complaint alleges that Defendants failed in their duty and responsibility to oversee the LAPD officers involved in Plaintiff's false arrest, which officers are alleged to have committed the same unconstitutional acts upon others in fourteen (14) other cases. Complaint at ¶ 22. The complaint further alleges that Defendants conspired with all other defendants to violate plaintiff's Fourth and Fourteenth Amendment rights and understood and agreed to do all the things alleged against them in the complaint. Complaint at ¶ 26. Viewed in the light most favorable to the Plaintiff, the foregoing allegations support a reasonable inference that Defendants were wilfully blind to the unconstitutional practices of the LAPD officers involved in this case notwithstanding the number of civil rights complaints filed against them. 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). As such, the complaint sufficiently states that Defendants conspired with others to violate Plaintiff's constitutional rights. See Harris v. Roderick, 126 F.3d 1189, 1196(9th Cir. 1997) (motion to dismiss denied where plaintiff alleged in his complaint which defendants conspired, how they conspired and how the conspiracy led to a deprivation of his constitutional rights, even though he did not identify which officer said or did what at which particular time). Accordingly, Defendants' motion to dismiss Count Two shall be denied.
3. May Defendants be sued in their official capacities in Counts Three and Four?
Count Three alleges that all Defendants are liable to plaintiff because they have, and foster, a policy, practice, procedure and custom of Fourth and Fourteenth Amendment violations. Count Four alleges that all Defendants are liable to Plaintiff because they have a custom of improperly indemnifying LAPD officers for punitive damages. Such allegations state an official capacity claim. Kentucky v. Graham, 473 U.S. 159, 165-66(1985) (official capacity suit is based on allegations that a municipality's official policy or custom caused a deprivation of federally protected rights). Since the proper defendant in a Section 1983 official capacity suit is the municipal entity (Kentucky v. Graham, 473 U.S. at 166), Defendants shall be dismissed from Counts Three and Four.
4. Does Plaintiff have standing to seek declaratory and injunctive relief?
Defendants seek dismissal of Counts Five and Six because 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, along with other co-defendants, engaged 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, Defendant's 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. Plaintiff further alleges "there is a real and immediate threat of serious injury and of death which presents a justiciable controversy." Complaint at ¶ 52.
"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.
Plaintiff's allegations of future constitutional injuries at the hands of Defendants are speculative. See,e.g., Lowry v. Social Security Administration, 2000 WL 730412, *16(D.Or.) (motion to dismiss denied where plaintiff attorney, who appeared regularly before defendants, administrative law judges, alleged that defendant judges denied him attorney fees, caused him to suffer loss of business and thereby damaged his law practice and reputation; and that such injuries would recur in future proceedings). Accordingly, the motion to dismiss Count Six of the Complaint shall be granted.
5. 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 with others 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 seeks dismissal of both counts because Plaintiff fails to allege facts that would support standing, a predicate act, a pattern of racketeering activity and an enterprise — all prerequisites to state a RICO claim. Defendants also seek dismissal on the ground that there are no facts alleging his participation in, or management of, a RICO enterprise.
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 plaintiffs use and enjoyment of the rental property due to racketeering activity next door was not an injury to business or property sufficient 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 Plaintiffs 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, Plaintiff lacks 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 to adequately 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, are insufficient to state a predicate act under RICO. Moreover, Plaintiff fails to allege that Defendants obstructed justice 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.Hawaii 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 1(violation of Section 1983) is hereby DENIED; and
IT IS FURTHER ORDERED that Defendants' motion to dismiss Count 2(conspiracy to violate Section 1983) is hereby DENIED;
IT IS FURTHER ORDERED that Defendants' motion to dismiss Counts 3 and 4 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.