STANLEY A. BOONE, Magistrate Judge.
Currently before the Court is Defendants City of Atwater, Frank Pietro, Tyna Lamison, Samuel Joseph, John Smothers, David Walker, Don Wisdom, Robert Vargas, Dayton Snyder, Ken Lee, Fabian Velasquez, and Adolfo Morales' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The matter was referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72.
Since 2004, Plaintiffs Richard Johnson and Lori Johnson ("Plaintiffs") have resided at 1675 Drakeley Avenue in Atwater, California. (First Am. Compl. ¶ 2.) Plaintiffs have been engaged in a long standing dispute over water service with the City of Atwater. (First Am. Compl. ¶ 10.) Plaintiff Richard Johnson went to City Hall in October 2015 to discuss their water bill which was allegedly several thousand dollars. (First Am. Compl. ¶ 11.) Defendant Lamison came to the front window and began yelling at Plaintiff Richard Johnson accusing him of being off his medication. (First Am. Compl. ¶ 11.) Defendant Lamison had Plaintiff Richard Johnson arrested for disturbing the peace. (First Am. Compl. ¶ 11.) Plaintiff Richard Johnson was handcuffed by unknown police officers and paraded through City Hall. (First Am. Compl. ¶ 11.)
Plaintiff Richard Johnson was placed in a holding cell for several hours. (First Am. Compl. ¶ 11.) While Plaintiff was in the holding cell, unknown City employees, at the direction of Defendant Pietro, went to Plaintiffs' residence and removed a piece of pipe that supplied water to the residence, stopping the water service, and leaving the residence without water. (First Am. Compl. ¶ 11.)
About October 6, 2015, Plaintiff's placed signs in their front yard which mentioned Defendants Pietro and Lamison by name in protest of the City's actions. (First Am. Compl. ¶ 12.) The signs were visible from the public right-of-way. (First Am. Compl. ¶ 12.) Defendant Velasquez, who is the Code Enforcement Officer for the City, ordered Plaintiffs to remove the signs. (First Am. Compl. ¶ 13.) Plaintiffs refused to remove the signs and Defendant Velasquez informed them that the signs were slanderous and could result in a civil action against Plaintiffs if they were not removed; and if not removed, Defendant Velasquez would begin the uninhabitable dwelling procedure on their residence. (First Am. Compl. ¶ 13.)
On November 25, 2015, Defendants Velasquez and Vargas arrived at Plaintiffs' residence and told Plaintiff Lori Johnson that the signs must be immediately removed and the hose that was procuring water from their neighbor must be disconnected. (First Am. Compl. ¶ 14.) Plaintiff Lori Johnson refused to remove the signs and asked for a meeting with Defendant Pietro and other City personnel to resolve the water issue. (First Am. Compl. ¶ 14.) Defendant Velasquez informed Plaintiff Lori Johnson that the signs violated the municipal code and if they were not removed he would have them seized and would issue a citation for violation of the municipal code and theft of water. (First Am. Compl. ¶ 15.) Plaintiff Lori Johnson asserted that the signs were within her First Amendment rights; and Defendant Vargas requested that Plaintiff Lori Johnson remove the names from the signs. (First Am. Compl. ¶ 15.) Plaintiff Lori Johnson removed the names from the signs. (First Am. Compl. ¶ 15.)
On November 30, 2015, Defendants Vargas, Velasquez, Snyder, Smothers, Walker, Wisdom, Lee, Morales, and other City personnel came to Plaintiffs' residence to seize the signs and issue a citation for violation of the municipal code. (First Am. Compl. ¶ 16.) Plaintiff Lori Johnson asked for the names and badge numbers of the individuals but they refused to provide the information requested. (First Am. Compl. ¶ 16.) Plaintiff Lori Johnson called the paramedics because of an anxiety attack that was brought on by the removal of the signs. (First Am. Compl. ¶ 17.) Plaintiff Richard Johnson tried to prevent the signs from being removed and was arrested for assault and battery.
When Plaintiff Lori Johnson tried to get to her husband, she was hit in the shoulder causing her to drop her cell phone which broke. (First Am. Compl. ¶ 17.) The paramedics were prevented from assisting Plaintiff Lori Johnson for several minutes. (First Am. Compl. ¶ 17.) After Plaintiff Richard Johnson was handcuffed, the officers removed the protest signs, ripping and breaking them in the process. (First Am. Compl. ¶ 18.)
Plaintiff contends that the City Municipal Code section 17.69.660 required notice of the violation to be given to the property owner and that the notice contain information about the right to appeal. (First Am. Compl. ¶ 19.) The City did not send Plaintiffs notice of the violation until December 18, 2015, three weeks after the signs were removed. (First Am. Compl. ¶ 19.) On receipt of notice of the violation, Plaintiffs filed a timely appeal. (First Am. Compl. ¶ 20.) The appeal was heard on January 20, 2016, by Hearing Officer L. Carmen Ramirez. (First Am. Compl. ¶ 21.) The hearing officer determined that the City's Municipal Code created a constitutionally impermissible content focused inquiry and the late notice of abatement must be cancelled.
After the signs were seized, Plaintiff's alternate water source was interrupted, leaving Plaintiffs' residence without water and the uninhabitable dwelling process began. (First Am. Compl. ¶ 24.) Plaintiffs were told if they moved out of their house and rented it the water would be turned back on. (First Am. Compl. ¶ 24.) Plaintiffs did not have the funds to pay the water bill in full and moved out of their house for 31 days. (First Am. Compl. ¶ 24.) Plaintiffs moved out of the house, renting it out, and the City turned the water back on. (First Am. Compl. ¶ 24.) After hearing that Plaintiffs were speaking with legal counsel, Defendant Pietro met with Plaintiffs and allowed them to return to their home with the water turned on. (First Am. Compl. ¶ 24.)
When Plaintiffs moved back in the house, they discovered that the renters had planted several marijuana plants in their backyard. (First Am. Compl. ¶ 25.) Plaintiff Lori Johnson discussed this with Defendant Lee who asked if she really wanted to get rid of the plants because marijuana was almost legal. (First Am. Compl. ¶ 25.) Defendant Lee later apologized to Plaintiff Lori Johnson for the comment. (First Am. Compl. ¶ 25.)
At some time, Defendant Pietro gave Plaintiffs $1,750 cash with no explanation. (First Am. Compl. ¶ 12.) Plaintiff Lori Johnson inquired of the City where the money came from and what it was for, but did not receive a satisfactory response. (First Am. Compl. ¶ 26.)
Plaintiffs Richard Johnson and Lori Johnson filed this action in the Superior Court for the County of Merced on September 20, 2016, alleging violations of the Fourth Amendment against Defendant Lamison and Doe defendants based on Plaintiff Richard Johnson's arrest on October 6, 2015; violations of the First, Fourth, and Fourteenth Amendments, and California Civil Code § 52.1 against all defendants except Lamison based on the November 30, 2015 incident; and false arrest and false imprisonment, intentional infliction of emotional distress, and negligence against all defendants.
On October 28, 2016, this action was removed by Defendants to the Eastern District of California. Defendants City of Atwater, Pietro, Lamison, Joseph, Walker, Wisdom, Vargas, Snyder, Lee, Velasquez, and Morales filed an answer on November 20, 2016. Defendant Smothers filed an answer on January 25, 2017. On February 28, 2017, Plaintiffs filed a first amended complaint. Defendants filed a motion to dismiss on March 17, 2017. Plaintiffs filed an opposition to the motion to dismiss on April 4, 2017. On April 12, 2017, Defendants filed a reply.
Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint "fail[s] to state a claim upon which relief can be granted." A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully harmed-me accusation."
In deciding whether a complaint states a claim, the Ninth Circuit has found that two principles apply. First, to be entitled to the presumption of truth the allegations in the complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively."
Defendants move to dismiss pursuant to Rule 12(b)(6) on the ground that the complaint fails to allege sufficient facts to state any cognizable claims and they are entitled to qualified immunity for the third cause of action. Plaintiffs respond that the allegations contained in the complaint contain sufficient factual detail to survive a motion to dismiss.
Section 1983 provides a cause of action for the violation of a plaintiff's constitutional or other federal rights by persons acting under color of state law.
The parties both argue facts outside of the first amended complaint to support their position as to whether a claim has been stated in the first amended complaint. However, in deciding a Rule 12(b)(6) motion, the Court may not look beyond the complaint without converting the motion to a motion for summary judgment.
Based on review of the first amended complaint, the allegations include facts that could potentially lead to claims that have not been pled in the first amended complaint. The plaintiff is the master of his complaint and can choose which claims he will pursue in this action and which he chooses not to pursue. Additionally, Plaintiffs in this action are represented by counsel and, therefore, the Court does not liberally construe the complaint.
To state a claim under section 1983, a plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights.
Plaintiffs allege that the City had customs, policies, usages, or practices "1) for using excessive/unreasonable force on people; 2) for unlawfully seizing people; 3) for unlawfully seizing private property; 4) for falsely imprisoning people; 5) for interfering with people's and/or otherwise violating people's constitutionally protected right to free speech; 9) [sic] for interfering with people's rights to remain in their private residences; 10) for denying people equal protection under the laws, especially based on mental health and/or freedom of speech); 11) for interferring [sic] with people's rights to mobilize support to bring about change in government policies and procedures." (First Am. Compl. at ¶ 7.) Plaintiffs also allege that the City was negligent by failing to exercise reasonable diligence in serving the notice of violation prior to seizing Plaintiffs' signs, failing to train its employees, failing to supervise Defendant Lamison, and failing to follow its own regulations. (First Am. Compl. at ¶¶ 89-92.) The Police Department was negligent because it had a duty to interview any alleged victim prior to handcuffing and restraining Plaintiff Richard Johnson, and failing to confirm events with the alleged victim before arresting a suspect. (First Am. Compl. at ¶¶ 93-94.)
First, under
In this action, other than the allegation that the municipal code was found to be an unconstitutionally content based restriction (First Am. Compl. at ¶ 22), the complaint is devoid of any allegations to support a custom, policy, or practice by the City or the Police Department. A single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom.
While Plaintiffs argue that the municipal code establishes that the City Manager establishes policy for the City, Plaintiffs did not include such allegations in the first amended complaint. Further, Plaintiffs' conclusory allegations that Defendant Pietro directed and ratified the numerous events that are complained of in the complaint are not entitled to the presumption of truth.
Moreover, while unclear, it does not appear that Plaintiffs are challenging the municipal code as being an impermissible content based restriction on speech but are seeking damages against the defendants who enforced the regulation. If Plaintiffs seek to challenge the municipal code or are bringing a
The Court finds that Plaintiffs have failed to state a cognizable
Plaintiffs name Samuel Joseph as a defendant in the action. (First Am. Compl. ¶ 5.) However, the complaint is devoid of any factual allegations against Defendant Joseph. Plaintiffs have failed to state a cognizable claim against Defendant Joseph. The Court recommends that Defendants' motion to dismiss be granted as to Defendant Joseph.
Plaintiffs' first cause of action is brought against Defendant Lamison and five Doe defendants alleging unreasonable search and seizure in violation of the Fourth Amendment. Plaintiffs allege that there was no probable cause to arrest Plaintiff Richard Johnson. Defendants move to dismiss the first cause of action arguing that Defendant Lamison does not have the authority to arrest Plaintiff and that Plaintiff fails to include allegations that he was not disturbing the peace because to do so would be a violation of Rule 11. Plaintiffs do not address the first cause of action in their opposition. Defendants respond that by failing to address the first cause of action Plaintiffs have conceded that it fails to state a claim.
"The Fourth Amendment provides that `the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .'"
It is well established that a claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, if the arrest was made without probable cause or other justification.
California makes it unlawful to "unlawfully fight[] in a public place or challenge[] another person in a public place to fight[,]" "maliciously and willfully disturb[] another person by loud and unreasonable noise[,] or "use[] offensive words in a public place which are inherently likely to provoke an immediate violent reaction." Cal. Pen. Code § 415. Plaintiff alleges that he when he went to City Hall to discuss his utility bill, Defendant Lamison came to the front window and began accusing him of being off of his medication, and then had him arrested for disturbing the peace.
While Defendants argue that Plaintiff Richard Johnson cannot state that he was not acting belligerently on the date of his arrest because it would violate Rule 11, Plaintiff alleges that at the time that he was arrested he was acting lawfully. (First Am. Compl. at ¶ 35.) In assessing the sufficiency of a complaint, all well-pleaded factual allegations must be accepted as true.
However, Defendant Lamison is the assistant to the Chief of Police. (Compl. at ¶ 11.) Plaintiff Richard Johnson asserts that he was handcuffed and taken away by unidentified City of Atwater police officers. Plaintiffs' conclusory allegation that Defendant Lamison "had him arrested" is insufficient to state a cognizable claim that Defendant Lamison violated the Fourth Amendment.
The Court finds that Plaintiff has failed to state a cognizable claim under the Fourth Amendment against Defendant Lamison. However, the complaint is sufficient to state a cognizable claim against the five Doe defendants for illegal seizure in violation of the Fourth Amendment. The Court recommends that Defendants' motion to dismiss the first cause of action for failure to state a claim be granted as to Defendant Lamison and denied as to the five Doe defendants.
Plaintiff Richard Johnson brings the second cause of action alleging the use of excessive force on November 30, 2015. Defendants contend that the second cause of action fails as to all defendants other than Vargas and Snyder because no other officer used force on Plaintiff Richard Johnson. Further, Defendants contend that as alleged in the complaint the use of force was reasonable given that Plaintiff Richard Johnson was resisting arrest and was arrested for assault and battery which he declined to state in the complaint. Plaintiffs respond that the presence of several officers "swarming" the Plaintiffs' residence over the sign ordinance violation and alleged theft of water is excessive use of force in the circumstances.
Excessive force claims which arise in the context of an arrest or investigatory stop of a free citizen invoke the protections of the Fourth Amendment and are governed by its "reasonableness" standard.
The reasonableness inquiry in excessive force cases is whether the officer's actions were "`objectively reasonable' in light of the facts and circumstances confronting" him.
In this instance, Plaintiffs argue the presence of multiple officers to intimidate them was excessive under the circumstances. While Plaintiffs' argue that the City had months and as long as year to obtain a warrant, the issue here is not an unreasonable seizure of the property, but whether the force used against Plaintiffs was excessive. According to Plaintiffs' complaint, Defendant Velasquez, the code enforcement officer, had been out around October 6, 2015, and November 25, 2015, and informed Plaintiffs that the signs violated the municipal code and had to be removed. (ECF Nos. 13, 14.) On each occasion, Plaintiffs told Defendant Velasquez that they would not take down the signs. (ECF Nos. 13, 14, 15.) Further, based on the allegations in the complaint, Plaintiffs had a history of refusing to comply with the City requests as evidenced by the allegations relating to the sign and water issues. (ECF No. 13, 14.) While the crime at issue here was not necessarily severe, the history of the parties indicated that the threat that the situation could become violent was apparent. In the totality of the circumstances alleged in the complaint, the Court finds that it was not objectively unreasonable for the City to ensure that there were sufficient officers available when Defendants Vargas and Velasquez returned to enforce the municipal ordinance and issue citations due to Plaintiffs' refusal to comply with the municipal code and water theft. Plaintiffs fail to state an excessive force claim against the named defendants based upon their presence at the residence on November 30, 2015.
Plaintiff Richard Johnson alleges that when he tried to prevent the signs from being removed, Defendant Vargas grabbed his right wrist and twisted his arm behind his back. (Compl. at ¶ 17.) Defendant Snyder came to assist Defendant Vargas, and they knocked Plaintiff Richard Johnson to the ground and placed him in handcuffs. (Compl. at ¶ 17.) Plaintiff Richard Johnson tried to pull the signs up himself and ended up being arrested for assault and battery. (Compl. at ¶ 17.) In the circumstances presented here, Plaintiff Richard Johnson attempting to prevent the officers from performing their duties, the Court cannot infer that the force used was objectively unreasonable.
Plaintiffs have failed to state a claim for excessive force in violation of the Fourth Amendment based on the November 30, 2015 incident. The Court recommends that Defendants' motion to dismiss the second cause of action for failure to state a claim be granted.
Plaintiffs' third cause of action alleges an unreasonable seizure of private property based on the removal of the protest signs from in front of their house. Plaintiffs allege that the signs were removed in violation of the City Municipal Code section 17.69.660B which requires a notice of violation and an opportunity to appeal prior to taking any abatement action. Defendants argue that even if the signs were removed without complying with section 17.69.660B, a violation of the municipal code does not amount to a Fourth Amendment violation.
A seizure of property occurs for the purposes of the Fourth Amendment when "there is some meaningful interference with an individual's possessory interests in that property."
While Defendants are correct that failure to provide notice pursuant to the municipal code does not amount to a Fourth Amendment violation, neither does the decision to seize the property pursuant to the municipal code determine the reasonableness of the seizure.
The first amended complaint alleges that on November 30, 2015, Defendants Vargas, Velasquez, Snyder, Smothers, Walker, Wisdom, Lee, Morales, and other unknown personal came to their residence to seize the signs and issue a citation for water theft and municipal code violations. (First Am. Compl. at ¶ 16.) While Plaintiffs allege that the signs were seized without a warrant, the complaint fails to identify the individual or individuals who seized the signs. The mere presence of an individual at the scene of the incident is insufficient to establish liability for the acts alleged.
Plaintiffs also allege that the signs were ripped and broken in the process of being removed. While the unnecessary destruction of the signs would be sufficient to state a cognizable claim for violation of the Fourth Amendment, Plaintiffs' allegation that the defendants removed the protest signs, ripping and breaking them in the process fails to state a cognizable claim.
While the cause of action is somewhat vague, Plaintiffs argue the first amended complaint states a due process claim in this action. Defendants did not address a due process claim; however, Plaintiffs argue that their due process rights were violated by the failure to provide notice prior to removal of the signs. The Court notes that Plaintiffs in this action are represented by counsel. If Plaintiffs choose to file an amended complaint, they are advised that the amended complaint needs to clearly set out all causes of action which Plaintiffs seek to pursue in this matter.
"The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake."
Generally, the Due Process Clause requires some type of hearing before the State deprives an individual of his liberty or property.
Plaintiffs allege pursuant to City Municipal Code section 17.69.660 they were required to receive notice of the violation and the right to appeal. (First Am. Compl. ¶ 19.) Plaintiffs state that they did not receive notice of the violation until December 18, 2015, three weeks after the signs were removed. (First Am. Compl. ¶ 19.) At the pleading stage, Plaintiffs have stated a claim against Defendant Velasquez, as the code enforcement officer, for failing to provide notice prior to the removal of the signs. However, Plaintiffs complaint fails to state a claim against any other named defendant. The Court recommends that Defendants' motion to dismiss the third cause of action for violations of due process be denied as to Defendant Velasquez and granted as to all other named defendants.
Plaintiffs' fourth cause of action alleges violations of their rights to free speech and to petition the government in violation of the First Amendment. Defendants argue that it is unclear who this cause of action is pled against and the complaint is devoid of any facts to indicate that Plaintiffs' free speech rights were violated. Further, Defendants contend that the facts as pled show that they were enforcing the municipal code and there are no facts to establish that the municipal code was illegal or that they were aware that the municipal code was illegal. Plaintiffs counter that by swarming their property and removing the signs their voices were silenced and their attempt to mobilize popular support to change existing laws and conditions at City Hall and the First Amendment was violated.
Signs are a form of expression protected by the Free Speech Clause,
In this cause of action, Plaintiff has not challenged the regulation itself, but seeks to hold the officers who were enforcing the regulation personally liable for infringing upon his First Amendment rights. "State action designed to retaliate against and chill political expression strikes at the heart of the First Amendment."
In order to state a claim against the individual defendants in this action, Plaintiffs must show that they were engaged in protected conduct, the defendant's action chilled or deterred their political speech, and such deterrence was a substantial or motivating factor in the defendant's conduct.
Plaintiffs' placement of protest signs in their front yard is protected speech under the First Amendment.
However, Plaintiffs have not alleged facts to show that deterrence or chilling of First Amendment activity was a substantial or motivating factor in any other defendants' conduct. Rather, based on the allegations in the complaint, the officers were acting to enforce a municipal ordinance that was violated by the signs being in Plaintiffs' yard. In the fourth cause of action Plaintiffs allege that there rights under the First Amendment were violated "when [Defendants] swarmed the JOHNSON residence and proceeded to remove, damage, destroy and seize PLAINTIFFS' protest signs, they abridged PLAINTIFFS' rights to free speech and silenced PLAINTIFFS' voices and removed PLAINTIFFS' attempts to mobilize popular support to change existing laws and/or conditions found at CITY Hall, all in violation of the First Amendment to the United States Constitution." (First Am. Compl. at ¶ 56.) These allegations are insufficient to state a plausible claim that the defendants acted with the intent to chill Plaintiffs' speech, rather than to enforce the municipal code. Also, while Plaintiffs make reference to the municipal code, they fail to identify the code section or provide any allegations regarding what was prohibited by the municipal code.
The Court finds that Plaintiff has failed to state a claim against any other named defendant. The Court recommends that the motion to dismiss the fourth cause of action be denied as to Defendant Velasquez and granted as to all remaining defendants.
Plaintiffs' fifth cause of action alleges a violation of California Civil Code section 52.1 known as the Bane Act. The Bane Act provides "a state law remedy for constitutional or statutory violations accomplished through intimidation, coercion, or threats."
Plaintiffs' allegations regarding Defendant Velasquez threat to have their home declared an uninhabitable dwelling if they did not remove the protest signs is sufficient to state a cognizable claim against Defendant Velasquez under the Bane Act. However, courts have held that the plaintiff "in a search-and-seizure case must allege threats or coercion beyond the coercion inherent in a detention or search in order to recover under the Bane Act."
The Court recommends that the motion to dismiss the fifth cause of action be denied as to Defendant Velasquez and granted as to all remaining defendants.
Plaintiffs' sixth cause of action is brought by Plaintiff Richard Johnson against all defendants alleging false arrest and false imprisonment. Defendants argue that the claims must be dismissed because there are insufficient facts alleged to believe that Plaintiff Richard Johnson was not obstructing, interfering or resisting because he was. Defendants also contend that Plaintiff Richard Johnson cannot plead that he was not interfering with the code enforcement officer's duties on November 30, 2015, and then became violent with Defendants Vargas and Snyder. Plaintiff responds that the defendants had no right to be on their property and the fact that they did not like the communication did not give them a lawful reason to arrest Plaintiff Richard Johnson.
The problem with the arguments of the parties is that Plaintiff's sixth cause of action clearly only challenges his arrest at City Hall in October 2015, not his arrest on November 30, 2015. The complaint alleges that "RICHARD was arrested at CITY Hall as a result of LAMISON'S request, and taken into custody by unknown CITY personnel, acting under color of law, without a warrant and under false pretenses of disturbing the peace and being "off his meds." (First Am. Compl. at ¶ 69.) The complaint goes on to allege that Lamison and the unidentified defendants did not have probable cause or reasonable suspicion to believe that an emergency situation existed. (First Am. Compl. at ¶ 70.) Plaintiffs state that Defendant Lamison and the five Doe defendants constituted a false arrest/false imprisonment of Plaintiff Richard Johnson. (First Am. Compl. at ¶ 75.) All allegations included in the sixth cause of action address the actions of Defendant Lamison who was not involved in the November 30, 2015 incident and do not mention his arrest for assault and battery.
Under California law, false imprisonment is the "`unlawful violation of the personal liberty of another.'"
Plaintiff Richard Johnson argues that the fact that all charges against him were dismissed demonstrates that he was falsely arrested. However, whether there is probable cause to arrest is a much lower standard than what is required in determining whether the charge can be proved beyond a reasonable doubt.
As discussed
Plaintiffs' seventh cause of action alleges intentional infliction of emotional distress against all defendants. Defendants argue that Plaintiffs have failed to state a plausible claim that their actions amounted to extreme and outrageous conduct and Plaintiff Richard Johnson has not alleged that he suffered any emotional distress. Further, Defendants contend that there are no allegations related to Plaintiff Lori Johnson that would amount to the intentional infliction of emotional distress. Plaintiffs respond that Defendant Lamison acted outrageously when she asked Plaintiff Richard Johnson if he was off his medication in the reception area of City Hall and that the defendants acted outrageously when the defendants "swarmed" their property causing Plaintiff Lori Johnson to have an anxiety attack and need the assistance of paramedics.
Under California law, the elements of intentional infliction of emotional distress are: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct."
Finally, the California Supreme Court has set a high bar for the requirement that the plaintiff show severe emotional distress.
Plaintiffs' claims of intentional infliction of emotional distress fail to state a claim both because the conduct alleged is not extreme and outrageous and Plaintiffs allegations do not rise to the level of severe emotional distress. Plaintiff Richard Johnson's allegation that Defendant Lamison asked him if he was off his meds, even if asked loudly, is more akin to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.
Plaintiffs' generally allege that they suffered physical and mental pain and anguish. (First Am. Compl. at ¶¶ 19, 23.) Plaintiff Richard Johnson alleges that he was substantially mentally and emotionally injured and incurred medical and psychological costs. (First Am. Compl. at ¶¶ 38, 43, 53, 57, 66, 77, 86, 95.) Plaintiff Lori Johnson alleges that she was so distraught that she suffered an anxiety attack which required her to call the paramedics and was denied treatment for several minutes. (First Am. Compl. at ¶ 17.) The allegations in the first amended complaint fail to allege any facts to demonstrate that Plaintiffs suffered emotional distress "of such a substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it[,]"
Plaintiffs have failed to state a claim for intentional infliction of emotional distress. The Court recommends that Defendants' motion to dismiss the seventh cause of action be granted.
Plaintiffs' eighth cause of action is against all defendants for negligence in violation of California law. Defendants contend that the eighth cause of action is impermissibly vague as to who owed a duty to Plaintiffs, what the duty was, how it was breached, and how a breach caused damages to Plaintiffs. In their opposition to the seventh cause of action, Plaintiffs argue that Defendant Lamison had a duty pursuant to her job description to deal tactfully and courteously with the public.
A public employee is liable for injury "proximately caused by his negligent or wrongful act or omission." Cal. Gov't Code § 844.6(d). Under California law "[t]he elements of a negligence cause of action are: (1) a legal duty to use due care; (2) a breach of that duty; (3) the breach was the proximate or legal cause of the resulting injury; and (4) actual loss or damage resulting from the breach of the duty of care."
In the eighth cause of action, Plaintiffs make numerous conclusory allegations regarding the City of Atwater and the Atwater Police Departments' duty to exercise reasonable diligence, to train and follow rules and regulations, and to interview victims prior to arresting suspects. However, Plaintiffs' complaint is devoid of any facts to support such allegations. Plaintiffs' conclusory allegations are insufficient to state a cognizable claim against the City of Atwater or the Atwater Police Department for negligence.
Plaintiffs argue that Defendant Lamison had a duty to deal tactfully and courteously with the public. Plaintiffs cite to no authority, nor is the Court aware of any legal authority, for the proposition that a public employee owes a duty to deal tactfully and courteously with the public.
California law provides that "[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself." Cal. Civ. Code § 1714(a). "Under general negligence principles . . . a person ordinarily is obligated to exercise due care in his or her own actions so as to not create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct."
"In determining the existence of a duty of care in a given case, pertinent factors to consider include the `foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved."
Plaintiffs also argue that Defendant Lamison owed Plaintiff Richard Johnson a duty not to broadcast confidential information by yelling at him and asking him if he was off his medication. Neither of the parties address whether there is a duty in the circumstances alleged in the first amended complaint as to the actions of Defendant Lamison. However, even assuming there was a duty for Defendant Lamison not to divulge confidential medical information, the Court finds that merely asking Plaintiff Richard Johnson if he was off his medication would not be a breach of such duty.
Plaintiffs have failed to state a claim that Defendant Lamison owed a duty to Defendant Richard Johnson which was breached. Plaintiffs have failed to state a claim of negligence against Defendant Lamison.
Plaintiffs also allege that all defendants breached a duty to confirm events with an alleged victim prior to arresting Plaintiff Richard Johnson. However, assuming such a duty exists, the factual allegations in this action would not demonstrate that the duty was breached. Plaintiff Richard Johnson was arrested in October 2015 and he alleges it was at the direction of Defendant Lamison, which suggests that she spoke with the officers.
Plaintiff Richard Johnson was arrested again on November 30, 2015, when he tried to prevent officers from removing the signs in his yard. Plaintiff has failed to state a cognizable claim for negligence against any named defendant based on a failure to investigate prior to arrest.
Plaintiffs' first amended complaint fails to state a cognizable claim for negligence against any named defendant. Accordingly, the Court recommends that Defendants' motion to dismiss the eighth cause of action be granted.
Plaintiffs allege that all Defendants "acted pursuant to a conspiracy, agreement and understanding and common plan and scheme to deprive the PLAINTIFFS of their federal and state constitutional and statutory rights, as complained of in this action, and acted in joint and concerted action to so deprive the PLAINTIFFS of those rights as complained of herein; all in violation of 42 U.S.C. § 1983, and otherwise in violation of California state law." (First Am. Compl. at ¶ 8.) Defendants contend that the conclusory conspiracy allegations are insufficient to state a claim. Plaintiffs do not address the conspiracy allegations in their opposition.
A conspiracy claim brought under section 1983 requires proof of "an agreement or meeting of the minds to violate constitutional rights,"
Plaintiffs have alleged no facts to demonstrate that any defendants had an agreement or meeting of the minds to violate their constitutional rights. Rather, the first amended complaint demonstrates that Defendants were attempting to enforce the municipal sign ordinance and that Plaintiffs' water was turned off because the City believed that they owed thousands of dollars in back water bills.
The first amended complaint fails to state a cognizable claim for conspiracy to violate Plaintiffs' civil rights. The Court recommends that Defendants' motion to dismiss the conspiracy claim be granted.
Plaintiffs are seeking punitive damages in this action. Defendants contend that the first amended complaint is devoid of any facts that any defendants conduct was motivated by an evil motive or intent or involved reckless and callous indifference to their federally protected rights. Plaintiffs disagree and contend that the complaint demonstrates that the defendants deliberately and callously disregarded their rights.
Punitive damages may be assessed in an action brought under section § 1983 "only where the [defendant's] conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.'"
In this instance, Plaintiffs have stated a claim for violation of their rights under the First and Fourth Amendments and it will be for the jury to determine if the defendants' conduct was motivated by evil motive or intent, or involved reckless or callous indifference to Plaintiffs' federally protected rights.
Accordingly, the Court recommends that Defendants' motion to dismiss the request for punitive damages be denied.
Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). Plaintiffs should be granted an opportunity to file an amended complaint.
In filing an amended complaint, Plaintiffs are advised that general allegations that "Defendants" acted are insufficient to state a claim under section 1983. In their amended complaint, Plaintiffs must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiffs' federal rights.
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
2. Plaintiffs be granted leave to file an amended complaint.
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fourteen (14) days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.
Fed. R. Civ. P. 11(b). Should the Court determine that Rule 11 has been violated, sanctions will be imposed on the offending party.
