SAMUEL CONTI, District Judge.
Now before the Court is Defendant County of Sonoma's (the "County") motion to dismiss Plaintiff Estate of Glen Swindell, et al.'s ("Plaintiffs") First Amended Complaint ("FAC"). ECF No. 19 ("Mot.). The motion is fully briefed
As it must on a Rule 12(b)(6) motion, the Court assumes the truth of the following facts taken from Plaintiffs' First Amended Complaint. ECF No. 6 ("FAC").
On the evening of May 16, 2014, Glenn Swindell and his wife, Sarah Swindell, had an argument while driving home from a work function. Upon arriving home, Glenn and his two children entered their home as Sarah delayed in exiting the vehicle. Glenn locked the front door of the house, and the argument continued as Sarah stood outside. Sarah then called 911, reported the incident — which she stated was nonviolent — and requested assistance in getting her children.
The responding sheriff deputies ("deputies") made contact with Glenn through a locked door in the home, and convinced him to release his children. Glenn then demanded that the deputies leave. He also made clear that he had a fear of law enforcement, stating that he was afraid they would shoot him as they had shot a thirteen-year-old child, Andy Lopez.
At some point, the deputies and their supervisors learned that Glenn was the lawful owner of two firearms. They also searched his Facebook page and falsely reported to other deputies that Glenn had made disparaging statements about law enforcement. Angered and frustrated, the deputies and their supervisors undertook a plan to punish Glenn for refusing to speak with them or let them into his home.
In order to secure a search and arrest warrant, the deputies and their supervisors fabricated evidence and lied about the circumstances relating to the incident, including
At some point during the incident, Sarah Swindell approached the deputies and requested that the situation be deescalated. In response, the deputies threatened to take Sarah's children from her if she failed to cooperate.
The deputies and their supervisors then summoned the Sonoma County Sheriff's Office SWAT. Approximately 50 officers responded. Upon arriving at the scene, one of the SWAT supervisors exclaimed, "Why don't you just kill the fucker!" The SWAT team then proceeded to use a military assault vehicle, concussion bombs, and chemical agents to break down the garage door and enter the Swindell home.
Upon gaining entry, the SWAT unit learned that Glenn was in the attic, that he feared the police would kill him, and that he was armed. At no time, however, did Glenn indicate that he intended to harm anyone.
After Glenn refused to come out, the SWAT unit began to pump gas into the attic. Given his extreme fear of the police, the deputies and SWAT officers knew that Glenn was unlikely to leave the attic notwithstanding the extreme pain that the gas would inflict.
After suffering intense mental and physical anguish as a result of the gas, Glenn took his own life with a single gunshot to the head. After Glenn died, the deputies interrogated Sarah Swindell at length as to her relationship with her husband while withholding from her that he had died.
On June 16, 2015, Plaintiffs filed their complaint in this action against the County of Sonoma and unnamed Defendants 1 through 10, alleging eleven claims for relief. Plaintiff Estate of Glenn Swindell brings claims one through four under 42 U.S.C. § 1983 for alleged violations of Glenn's Fourth, Fourteenth, First, and Second Amendment rights, respectively, against the deputies, their supervisors, and the responding SWAT units. Plaintiff Estate of Glenn Swindell also brings the fifth claim for relief alleging municipal liability for unconstitutional customs and practices under 42 U.S.C. § 1983 against the County, the deputies, their supervisors, and the responding SWAT units. The sixth claim for relief is brought by Glenn Swindell's family — Plaintiffs Sarah Swindell, Deborah Belka, G.S., M.S., J.S., Deann Walund, and Tyler Swindell — under 42 U.S.C. § 1983 alleging that the County, the deputies, their supervisors, and the responding SWAT units interfered with their familial integrity in violation of their Fourteenth Amendment Due Process rights. The seventh claim for relief is brought under 42 U.S.C. § 1983 by Plaintiff Sarah Swindell against the deputies, their supervisors, and the responding SWAT units for violations of her Fourth Amendment rights. Although it is not clear from the Complaint, it appears that all Plaintiffs bring the eighth, ninth, and tenth claims for relief. Those claims are against the County, the deputies, their supervisors, and the responding SWAT units for, respectively, assault and battery, wrongful death, and civil rights violations under Cal. Civ. Code Section 52.1. The eleventh claim for relief is brought by Plaintiffs Sarah Swindell, G.S., M.S., J.S., Tyler Swindell, and Deborah Belka against the County, the deputies, their supervisors, and the responding SWAT units for survivorship.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim."
When granting a motion to dismiss, a court is generally required to grant the plaintiff leave to amend. Cook, Perkiss &
Defendants' motion asks the Court to dismiss Plaintiffs' FAC for failure to state a claim in their fifth, sixth, ninth, tenth, and eleventh claims for relief. The Court addresses each in turn.
A plaintiff asserting a Section 1983 claim against a municipality must plead factual content that would allow the Court to draw a reasonable inference that: (1) the plaintiff has suffered a deprivation of a constitutional right; and (2) the violation of that right was caused by the enforcement of a municipal policy or practice, the decision of an official with final policy making authority, or inadequate training amounting to deliberate indifference to a plaintiff's constitutional rights.
Plaintiffs' fifth claim for relief alleges violations of Glenn Swindell's First, Second, Fourth, and Fourteenth Amendment rights. Defendants argue that the FAC does not state facts showing a violation of Glenn Swindell's Second or Fourteenth Amendment rights.
The "Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense."
As to alleged Fourteenth Amendment violations, Plaintiffs clarify in their Opposition that the Fourteenth Amendment is relevant to their fifth claim for relief only insofar as the Fourteenth Amendment applies the First, Second, and Fourth Amendments to the states. Opp'n at 8-9. Plaintiffs therefore do not allege an independent Fourteenth Amendment violation. Accordingly, their fifth claim for relief as to purported Fourteenth Amendment violations is DISMISSED WITHOUT PREJUDICE.
Defendants do not challenge Plaintiffs' fifth claim for relief as to alleged First and Fourth Amendment violations. Thus, the fifth claim for relief survives only as to those allegations.
The Supreme Court has held that a municipality is subject to liability under Section 1983 only when a violation of a federally protected right can be attributed to (1) an express municipal policy, such as an ordinance, regulation, or policy statement (
The FAC alleges that Plaintiffs were harmed as a result of a widespread County custom or practice, decisions made by sheriff deputies and ratified by their supervisors and other high ranking County officials, and the County's failure to properly train officers on the use of force amounting to deliberate indifference to individuals' constitutional rights.
In
Plaintiffs allege that "there exists an insidious custom and practice within the Sonoma County Sheriff's department of interrogating the family members of persons they have killed and extracting from them through lies and subterfuge information which would be only helpful to the defense of a civil case." FAC ¶ 78. Without more, however, Plaintiffs' conclusory assertion that "there exists" a widespread practice is insufficient. Furthermore, it fails to assert facts establishing that the practice caused the alleged rights violations in this case. Interrogating Glenn's surviving family members, after the fact, could not have been "the moving force" behind the alleged violations of Glenn's rights given that the violations at issue — the alleged unlawful search and seizure, the alleged excessive use of force, and so on — would have already occurred by that point.
The FAC also alleges that the County has a widespread practice of (a) "retaliating against private citizens who exercise their Second Amendment rights to keep and bear arms in their homes for the purpose of self-defense" (FAC ¶ 65), and (b) of using "abusive militarized police tactics when responding to minor service calls" (Opp'n at 11). Once again, Plaintiffs' assertions are conclusory and fail to allege facts showing a practice beyond the incident in this case.
For the forgoing reasons, Plaintiffs' allegations of unconstitutional practices within the County are DISMISSED WITHOUT PREJUDICE.
The Supreme Court has held that municipal liability may be based on a single decision by a municipal official who has final policymaking authority.
Here, Plaintiffs allege that the deputies worked "hand-in-hand with their supervisors." Opp'n at 11. In addition, Plaintiffs point to their allegation that a SWAT supervisor declared his intent to kill Glenn upon arriving at the location.
In
Defendants argue that "Plaintiffs' amended complaint is devoid of facts showing what the training was, any prior similar acts or other basis to show the need for more or different training, [or that] the alleged inadequacy [was] likely to result in constitutional violations." Mot. at 9. Plaintiffs' FAC, however, makes several allegations along those lines: "Defendant was aware that the responding Sheriff Deputies and various other Sheriff's Office personnel, including the responding SWAT unit, had not received proper and necessary training in responding to minor service calls pertaining to domestic disputes and effectively dealing with individuals who are in a crisis, including safely defusing anxious and hostile behavior; deciphering when behavior escalates; reinforcing preventative techniques and practicing the principles of non-harmful physical intervention." FAC ¶ 74. The FAC further alleges that the County "knew that such untrained deputies would escalate minor service calls by creating violent confrontations leading to injury or death." FAC ¶ 75. These allegations are sufficient to satisfy the requirements of Rule 8. Further, they relate to an area — police training on the use of force — where training is obviously necessary to avoid constitutional violations such that a lack of adequate training could constitute deliberate indifference. Finally, Plaintiffs have alleged facts sufficient to establish that the lack of training could have caused the alleged injuries in this case.
Accordingly, Defendants' motion as to Plaintiffs' allegations of inadequate training is DENIED.
Constitutional rights are personal rights which cannot be vicariously asserted.
Plaintiffs' sixth claim for relief is brought by Glenn Swindell's family members — Sarah Swindell, Deborah Belka, G.S., M.S., J.S., Deann Walund, and Tyler Swindell — under 42 U.S.C. § 1983 alleging that the County, the deputies, their supervisors, and the responding SWAT units interfered with their familial integrity in violation of their Fourteenth Amendment Due Process rights. The Due Process Clause of the Fourteenth Amendment protects the private realm of family life from unwarranted state interference (
Plaintiffs' allegations do not establish interference with their Fourteenth Amendment right to familial integrity. True, Defendants' actions allegedly caused the death of Glenn Swindell — surviving plaintiffs' father, son, and husband. The Court is not aware of any case, however, finding a Fourteenth Amendment violation where a family member has been wrongfully killed as a result of state action. Accordingly, Plaintiffs' sixth claim for relief is DISMISSED WITH PREJUDICE.
The ninth cause of action for wrongful death is asserted on behalf of all plaintiffs, including Glenn Swindell's mother, Deborah Belka. FAC ¶¶ 11, 108. Defendants argue that Ms. Belka does not have standing under California law to bring a wrongful death claim.
"In California, an action for wrongful death is governed solely by statute, and the right to bring such an action is limited to those persons identified therein."
Glenn Swindell left a surviving spouse and children. Further, there are no facts alleged that Ms. Belka was financially dependent on Glenn such that the exception under Section 377.60(b) could apply. Accordingly, Plaintiffs' wrongful death claim as to Deborah Belka is DISMISSED WITH PREJUDICE.
The Complaint asserts a wrongful death claim against the County for vicarious liability under Cal. Gov. Code § 815.2. It also attempts to assert a claim, however, against the County directly.
Section 815.2 provides only for the County's vicarious liability for the acts of its employees; it does not authorize Plaintiffs' direct liability claim against the County.
The Bane Act, California Civil Code Section 52, provides a right to relief when someone "interferes by threats, intimidation, or coercion . . . with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state." The elements of a claim for relief are: 1) an act of interference with a legal right by 2) intimidation, threats or coercion.
The California Court of Appeal held in
Defendants argue that Plaintiffs' tenth claim for relief should be dismissed under
Plaintiffs assert their tenth claim for relief on behalf of all plaintiffs, including all surviving plaintiffs. Defendants argue that "the surviving plaintiffs have no standing to assert a Section 52.1 wrongful death claim. . . . [Because] Section 52.1(b) specifically limits any cause of action to persons in his or her own name and on his or her own behalf." Mot. at 14. Plaintiffs do not dispute Defendants' argument.
Defendants are correct that relief under "the Bane Act . . . is limited to plaintiffs who themselves have been the subject of violence or threats."
Plaintiffs' eleventh claim for relief is for survivorship under Cal. Civ. Proc. Code § 377.30. "[A] survivor cause of action," however, "is not a new cause of action that vests in the heirs on the death of the decedent. . . . The survival statutes do not create a cause of action."
For the reasons set forth above, Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART.
The following claims are DISMISSED WITH PREJUDICE:
The following claims are DISMISSED WITHOUT PREJUDICE:
Defendants' motion to dismiss is otherwise DENIED. Accordingly, leave to amend is GRANTED only as to the fifth and ninth claims for relief as specified above. Plaintiffs may file a second amended complaint within thirty (30) days. Failure to file a second amended complaint within the time allotted may result in dismissal with prejudice.