YVONNE GONZALEZ ROGERS, District Judge.
Plaintiff Mark Haines alleges that his Fourth and Fourteenth Amendment rights were violated when he was taken into custody pursuant to California Welfare and Institutions Code § 5150,
Defendants have moved to dismiss the Seconnd through Fifth causes of action on the grounds that the Second and Third causes of action fail to state a claim, the Fourth cause of action was already dismissed without leave to amend, and the Defendant is entitled to absolute or qualified immunity as to the Fourth and Fifth causes of action.
Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby
Haines, who is proceeding pro se, alleges as follows: Plaintiff is an "unemployed transient who routinely travels and sleeps in his car." Second Amended Complaint ("SAC") ¶ 11, Dkt. No. 56. At approximately 5:45 p.m. on Friday, December 4, 2009, Plaintiff walked into the Berkeley Free Clinic ("BFC") in response to a handbill advertising "peer counseling." Id. ¶¶ 14, 15. Plaintiff was suffering from an upper respiratory tract infection, fatigue, hunger, frustration and anxiety, and was looking for emotional support to speak about personal emotional matters, including his frustration and anxiety. Id. ¶¶ 19-23. Plaintiff was informed that no peer counselor was available, and he waited for a counselor. Id. ¶¶ 31-32.
As Haines waited, police officers arrived at BFC, one of whom Plaintiff alleges prevented him from leaving and told him to "stay inside" when Plaintiff attempted to go outside to smoke a cigarette. Id. ¶¶ 36-46. Defendant Daryl Brand then arrived and escorted him to an interview room along with the officers. Id. ¶¶ 50-57. At this point Plaintiff believed he was under arrest. Id. ¶ 53.
Brand asked Plaintiff questions and informed Plaintiff that there was a concern "that [he] might want to hurt [himself]." Id. ¶ 60. Plaintiff responded "I came here for help" and "I came here to talk with a peer counselor about emotional issues." Id. ¶ 66. In response to further questioning by Brand, Plaintiff asserted his right to remain silent and asked to consult an attorney. Id. ¶ 72. Thereafter Haines refused to answer further questions from Brand and refused to sign a "contract for safety," asserting that he required a lawyer before signing anything and that he had a "right to remain silent." Id. ¶¶ 85-89. After further attempts to engage Plaintiff in conversation and get him to sign the contract for safety, Brand then applied for Plaintiff's involuntary psychiatric examination under California Welfare and Institutions Code § 5150. Id. ¶¶ 90-113. Plaintiff asserts that Defendant Brand subjected him to police detention and psychiatric evaluation without probable cause. Id. ¶ 167.
Plaintiff was searched and escorted outside the clinic to an ambulance parked outside. Id. ¶¶¶ 109-123. His pocket knife was seized. Id. ¶ 118. Plaintiff was then taken to Alta Bates Hospital, where he was held and offered food, and where staff asked him further questions and drew his blood over his objections. Id. ¶¶ 124-144. He was later transferred early Saturday morning, December 5, 2009, to the John George Psychiatric Pavilion. Id. ¶ 148. At about 5:30 a.m. that day, Dr. Schwartz interviewed Plaintiff and told him he was "free to goo." Id. ¶¶ 154-56. He was released at 6:00 a.m. Id. ¶ 157.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock. Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). All allegations of material fact are taken as true. Erickson v. Pardus, 551 U.S.. 89, 94 (2007). Although "detailed factual allegations" are not required, a Plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and quotations omitted). In considering a motion to dismiss, the Court starts by identifying the legally conclusory statements; these are not entitled to the assumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) ("legal conclusions can provide the framework of a complaint, [but] they must be supported by factual allegations"). Then the court should assume the veracity of the well-pleaded factual allegations and "determine whether they plausibly give rise to an entitlement to relief." Id. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `show[n]' — `that the pleader is entitled to relief.'" Id. (quoting Twombly, supra, 550 U.S. at 558-59).
Ordinarily, a pro se complaint will be liberally construed and held to a less stringent standard than formal pleadings drafted by lawyers. See Erickson, supra, 551 U.S. at 94. The Ninth Circuit has clarified that courts "continue to construe pro se filings liberally when evaluating them under Iqbal. While the standard is higher, our `obligation' remains, `where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.'" Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)). The Court's obligation, however, is not to "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per curiam) ("Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.").
Plaintiff's first cause of action alleges that he was arrested pursuant to Section 5150 without probable cause. Judge Chen previously held that Plaintiff stated a Fourth Amendment claim on this basis and Defendants do not move to dismiss the claim here.
The due process clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. AMEND. XIV, § 1. This clause has a procedural and substantive component, both of which safeguard the individual against arbitrary government action. While procedural due process ensures adequate procedures are in place before the government may deprive someone of a protected liberty interest, substantive due process prevents the government from engaging in conduct that "shocks the conscience." See County of Sacramento v. Lewis, 523 U.S. 833, 846-49 (1998) (discussing abusive conduct "that shocks the conscience" and violates the "decencies of civilized conduct").
The Due Process violation alleged in the Second Cause of Action is predicated on the Fourth Amendment claim, alleging that Plaintiff has a due process right to be free from unreasonable seizures. It is not clear whether Haines' claim arises under the procedural or substantive component of the due process clause. Haines merely alleges that "BRAND failed and refused to protect Plaintiff[`s] . . . right to be free from unreasonable search and seizures," and therefore, Brand "deprived him of due process under the Fourteenth Amendment." SAC ¶¶ 186-87. Plaintiff also alleges that Brand owed a duty to protect Plaintiff from injury while he was in custody, including protection from unreasonable use of wrist restraints and unreasonable drawing of blood.
Civil commitment for any purpose constitutes a significant deprivation of liberty that must be accompanied by procedural safeguards. See Addington v. Texas, 441 U.S. 418, 425 (1979). Procedural due process does not guarantee that the assessment is correct, only that the decision to order emergency commitment be made in accordance with a fair decision-making process.
Haines was detained pursuant to California Welfare and Institution Code §§ 5100 et seq., which provides, in pertinent part, that:
Cal. Welf. & Inst. Code § 5150. No judicial hearing or similar proceeding is required to initiate a 72-hour hold. Haines does not allege that the procedural safeguards set forth in Section 5150 violate constitutional norms of due process.
There is no suggestion that either Brand (or Wee) failed to follow any requisite procedure.
To the extent this claim is brought as a substantive due process claim, because Plaintiff's claim is for injuries suffered as a result of an alleged arrest without probable cause, the claim is properly analyzed under the Fourth Amendment. As Defendants correctly argue, "where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing a plaintiff's claims." Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal quotations, and brackets omitted), overruled in part on other grounds as recognized by Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007); see also County of Sacramento v. Lewis, 523 U.S. 833, 841-42 (1998); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002). Thus, if Plaintiff seeks to hold Brand or the City of Berkeley liable for any harm he suffered as a result of the arrest, it is properly analyzed under the Fourth Amendment, which, as stated above, remains a viable claim under the First Cause of Action.
The Court finds that Plaintiff has failed to state a claim under the Due Process Clause. Plaintiff already had an opportunity to cure the pleading defects for the due process violations alleged in his FAC. Nevertheless, the Court will provide Plaintiff with one last opportunity to allege a due process violation.
Based on the foregoing analysis, the Court
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. AMEND XIV, § 1.
Plaintiff's third cause of action alleges that Defendants Tureck and Medrano violated the Equal Protection Clause of the Fourteenth Amendment because Tureck and Medrano did not discipline Wee, Brand's supervisor, for Wee's failure to train or discipline Brand adequately. SAC ¶ 197. Haines alleges that because Defendants Tureck and Medrano failed to discipline Wee, they adopted or ratified a policy, practice or custom of the City of Berkeley to detain homeless people within the Telegraph area pursuant to Section 5150 to induce homeless people to stay away from the Telegraph area during the Christmas holiday season.
Liberally construing the allegations in the SAC, Plaintiff alleges that there is a longstanding practice or policy of subjecting homeless people to involuntary psychiatric evaluation to induce homeless people to leave the Telegraph Area of the City of Berkeley during the Christmas holiday shopping season. See SAC ¶¶ 162, 170, 198, 206. In dismissing Haines' Equal Protection claim in the FAC, Judge Chen advised Plaintiff that in order to plead a violation of the Equal Protection Clause, he must allege discriminatory intent. Specifically, Judge Chen explained that
Order Granting in Part and Denying in Part Motion to Dismiss First Amended Complaint, Dkt. No. 44 (quoting Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001)).
In the SAC, Plaintiff now alleges that the failure to discipline Wee for failing to discipline Brand for applying inappropriate clinical standards was pursuant to an official practice, policy, and/or custom motivated "at least in part because of rather than in spite of the discriminatory effect" on homeless people. SAC ¶¶ 196-98. This conclusory allegation is insufficient to support an equal protection claim. While the Court recognizes that Plaintiff has made an effort to follow Judge Chen's instructions and has made an attempt to cure the deficiencies in the FAC, the SAC has not cured those deficiencies. These new allegations are not "facts," they are legal conclusions.
To state an equal protection claim under this theory, Plaintiff will need to allege that detention pursuant to Section 5150 is being used as a pretext to remove homeless people from the Telegraph area. At best, Plaintiff alleges that Brand's belief that homeless people are more likely to be mentally ill increases the risk of an erroneous determination under Section 5150. Simply alleging that Tureck and Medrano did not discipline Wee for not disciplining Brand does not allege that the decision to place homeless people under 72-hour hold is motivated by a discriminatory purpose.
Nevertheless, this raises the possibility that Plaintiff may be able to allege facts to support an equal protection claim. For that reason, the Court will permit Plaintiff to amend the SAC if facts exist to support an equal protection claim. As pled, it appears that the decision to place homeless people under a 72-hour hold is based on a determination that they pose a risk of danger to themselves or others, which does not support an equal protection claim. However, if Plaintiff has facts to support an allegation that the City of Berkeley places homeless people under 72-hold pursuant to Section 5150 as a means to clear the Telegraph area of homeless people during the Christmas holiday shopping season, then he might be able to state an equal protection claim.
Based on the foregoing analysis, the Court
"False imprisonment is the unlawful violation of the personal liberty of another." Cal. Penal Code § 236. The elements for a tort claim of false imprisonment are: "`1) the nonconsensual, intentional confinement of a person, 2) without lawful privilege, and 3) for an appreciable period of time, however brief.'" Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1205 (9th Cir. 2003) (quoting Easton v. Sutter Coast Hosp., 80 Cal.App.4th 485, 496 (Cal. Ct. App. 2000)
Plaintiff alleges that Brand restricted Plaintiff's freedom of movement by use of duress, "Plaintiff did not consent to `medical clearance' or psychiatric evaluation," "Plaintiff was harmed," and "BRAND's conduct was a substantial factor in causing Plaintiff's harm." SAC ¶¶ 201-4.
Brand argues that she is entitled to statutory immunity insofar as the state tort claims relate to the commitment itself because California, by statute limits liability for a Section 5150 commitment. See Cal. Gov't Code §§ 856(a) and 855.6; Cal. Welf. & Inst. Code § 5278. California Government Code Section 856, subdivision (a), in pertinent part, provides: "Neither a public entity nor a public employee acting within the scope of his employment is liable for any injury resulting from determining in accordance with any applicable enactment: (1) Whether to confine a person for mental illness or addiction."
By way of his fourth cause of action, Haines seeks to hold Brand liable for false imprisonment for failing to assess accurately probable cause to detain Haines. Because Haines allegations concern Brand's exercise of statutory authority to detain him, and not any conduct during his detention, all three sources of immunity shield Brand from liability for the decision to confine Haines pursuant to Section 5150. Accordingly, the allegations in the SAC do not overcome Brand's immunity for the state law tort of false imprisonment.
Based on the foregoing analysis, the Court
Plaintiff may replead his claim for false imprisonment to allege facts that Brand's decision to detain Haines was not based on a clinical determination pursuant to Section 5150, but rather that detention pursuant to Section 5150 "was a pretext that she asserted based upon Plaintiff's homelessness," see SAC ¶ 169, or some other nonclinical reason, if such facts exist.
Judge Chen previously dismissed Plaintiff's claim for intentional infliction of emotional distress with prejudice on the basis that the Brand is immune from this state tort law claim; Plaintiff did not seek leave to replead this cause of action.
Therefore, Plaintiff's claim for intentional infliction of emotional distress, which already was dismissed with prejudice, is
The Court
Plaintiff's Second, Third, and Fourth Causes of Action for Due Process Violation, Equal Protection Violation, and False Imprisonment are
Plaintiff's Fifth Causes of Action for Intentional Infliction of Emotional Distress is
By no later than
Defendants' response(s) will be due 20 days from service of one the above.
This Order Terminates Docket Number 57.
