Opinion
NO. CIV. S-07-1119 LKK/KJM.
November 16, 2007
ORDER
Pending before the court is a motion to dismiss and motion to strike filed by defendant City of Richmond (identified in this action as "Richmond City Police"). For the reasons described herein, the court grants the motion to dismiss in part and denies it in part. The court denies the motion to strike.
In a cause of action under 42 U.S.C. section 1983, a municipality is a proper defendant, but a department or subdivision of the municipality is not. See, e.g., United States v. Kama, 394 F.3d 1236, 1239-40 (Ferguson, J., concurring); Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996).
I. ALLEGATIONS OF THE COMPLAINT
The plaintiff's complaint alleges that agents of the defendant law enforcement agencies used excessive force when entering the home where the plaintiff's minor children were located. The complaint alleges that the defendant's acts were racially motivated, in violation of the Fourteenth and Fifteenth Amendments and 42 U.S.C section 1983 . According to the complaint, agents of the defendant law enforcement agencies entered the plaintiff's home searching for the husband of plaintiff Zakiya Vaughn. The agents allegedly broke the front door of plaintiff's home, "ransacked" the interior, and used tear gas in the home while the plaintiff and her minor children were present. The plaintiff alleges that during the search "certain racial epithets were directed towards plaintiff . . . and certain gestures generally known to be racist in nature were also directed towards said plaintiff. . . ."
The plaintiff alleges that the defendants' actions violated the "Civil Rights Act of 1966 (as amended)." The court assumes that this is a reference to 42 U.S.C. section 1983.
The plaintiff alleges that she and her children suffered emotional distress as a result of the defendants' acts. She seeks monetary damages, attorney fees, and costs.
II. STANDARDS
A. Standard for Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6)
On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.; see also Wheeldin v. Wheeler, 373 U.S. 647, 648 (1963) (inferring fact from allegations of complaint).
In general, the complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court may not dismiss the complaint if there is a reasonably founded hope that the plaintiff may show a set of facts consistent with the allegations. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1967-69 (2007). In spite of the deference the court is bound to pay to the plaintiff's allegations, however, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
B. Standard for Motion to Strike Pursuant to Federal Rule of Civil Procedure 12(f)
Rule 12(f) authorizes the court to order stricken from any pleading "any redundant, immaterial, impertinent, or scandalous matter." A party may bring on a motion to strike within 20 days after the filing of the pleading under attack. The court, however, may make appropriate orders to strike under the rule at any time on its own initiative. Thus, the court may consider and grant an untimely motion to strike where it seems proper to do so. See 5A Wright and Miller, Federal Practice and Procedure: Civil 2d § 1380.
Motions to strike are generally viewed with disfavor, and will usually be denied unless the allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties. See 5A C. Wright A. Miller, Federal Practice and Procedure: Civil 2d § 1380; See also Hanna v. Lane, 610 F. Supp. 32, 34 (N.D. Ill. 1985). If the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, leaving an assessment of the sufficiency of the allegations for adjudication on the merits. See 5A Wright Miller, supra, at § 1380.
III. ANALYSIS
The plaintiff alleges that the defendant violated her rights under the Fourteenth and Fifteenth Amendments and "the Civil Rights Act of 1966 (as amended)." As explained below, the defendant's motion to dismiss is granted in part and denied in part. The motion to strike is denied.
The plaintiff concedes in her "response" to the defendant's motion that her claim cannot be brought under the Fifteenth Amendment. The court dismisses this claim with prejudice.
A. Motion to Dismiss
1. Plaintiff's Allegations Under the Fourteenth Amendment
Drawing every inference in favor of the plaintiff, the plaintiff appears to allege that the defendant violated her rights under the equal protection clause of the Fourteenth Amendment. She alleges that the defendants' actions were "racially motived," which may be read to allege that the defendant acted with a invidious purpose and discriminated against the plaintiff based on her membership in a definable class. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985); McLaughlin v. State of Florida, 379 U.S. 184, 191 (1964). The facts she pleads to substantiate her claim are that "during the course of the events described [in the complaint], certain racial epithets were directed towards plaintiff . . . and certain gestures generally known to be racist in nature were also directed towards said plaintiff. . . ." This suffices to provide the defendant fair notice of the nature of the claim and the legal grounds upon which it rests. At the pleading stage, no more is required. See Bell Atlantic Corp., 127 S.Ct. at 1965 fn. 3. The defendant's motion to dismiss this claim on the basis that plaintiff's claim fails to allege a cognizable claim is therefore denied.
2. Excessive Force
The plaintiff does not allege a claim under section 1983 for excessive force. Such a claim is properly characterized as implicating the Fourth Amendment, not the due process clause of Fourteenth Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). The plaintiff, however, has not pled her claim as implicating her Fourth Amendment rights. If she intended to do so, her claim is inadequately pled.
In order to state a claim against a municipal entity, the plaintiff must allege that an action pursuant to an official policy or a custom of the municipality causes the plaintiff's injury. Monell v. Dep't of Social Services, 436 U.S. 658, 691-92 (1978). A municipality is not liable under section 1983 simply on a theory of respondeat superior. Id. A plaintiff must plead facts that support the existence of a custom or official policy that caused the violation of the plaintiff's rights. Kelson v. Springfield, 767 F.2d 651, 656 (9th Cir. 1985). Because the plaintiff has not done so, her cause of action under section 1983 must be dismissed.
B. Motion to Strike
The defendant City of Richmond moves to strike all of the plaintiff's claims. Federal Rule of Civil Procedure 12(f) authorizes the court to strike from any pleading "any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Motions to strike are viewed with disfavor, and will usually be denied unless the allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties. See 5A C. Wright A. Miller, Federal Practice and Procedure, § 1380 (3d ed. 2004).
The defendant has failed to show that the plaintiff's claims have no possible relation to the controversy and may prejudice the parties, or that they contain "redundant, immaterial, impertinent, or scandalous matter." As described above, the plaintiff's Fourteenth Amendment claim states a valid cause of action against the defendant. Moreover, because the plaintiff's section 1983 claim is dismissed with leave to amend, it is premature to strike this claim without having permitted the plaintiff to clarify the factual and legal basis for this claim. The defendant's motion to strike is denied.
IV. CONCLUSION
For the reasons provided herein, the defendant's motion to dismiss premised on a failure to allege a policy or custom of the defendant is GRANTED. The motion to strike is DENIED. The plaintiff is given thirty days to file an amended complaint.
IT IS SO ORDERED.