Best v. Virgil Smith

• Court: District Court, N.D. California
• Decided: February 14, 2020
• Docket: 4:19-cv-02252
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN BEST, Case No. 19-cv-02252-YGR

8 Plaintiff, ORDER (1) GRANTING MOTION TO DISMISS AMENDED COMPLAINT, OR IN THE 9 v. ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT, AND (2) GRANTING 10 SONOMA COUNTY SHEIRFFS DEPARTMENT, IN PART AND DENYING IN PART REQUEST ET. AL., FOR LEAVE TO AMEND COMPLAINT 11 Defendants. Re: Dkt. Nos. 34, 40 12

13 Plaintiff Brian Best brings this action against defendants Sonoma County Sheriffs 14 Department, the Sonoma County Board of Supervisors, and the Sonoma County District 15 Attorney’s Office (collectively, “Sonoma County”), and “John Doe” (a sheriffs deputy), alleging 16 violations of his constitutional rights under the Fourth, Eighth, and Fourteenth Amendments of the 17 United States Constitution, and for state claims based on assault, battery, excessive force, 18 negligence, and torture. 19 Now before the Court are the following motions: First, Sonoma County moves to dismiss 20 Best’s amended complaint, or, in the alternative, move for a more definite statement. (Dkt. No. 21 34.) Second, Best moves for leave to amend his complaint and for permission to file a second 22 amended complaint. (Dkt. No. 40.) 23 Having carefully reviewed the pleadings, the papers submitted on each motion, and for the 24 reasons set forth more fully below, the Court ORDERS as follows: the Court GRANTS Sonoma 25 County’s motion to dismiss, or, in the alternative, motion for a more definite statement; and the 26 Court GRANTS IN PART and DENIES IN PART Best’ motion to amend his amended complaint. 27 I. RELEVANT BACKGROUND 1 The Court summarizes the relevant allegations from the operative amended complaint, and 2 those documents from which the Court takes judicial notice.1 The Court is mindful of its 3 obligation under existing precedent to construe Best’s pleadings liberally, as he is proceeding pro 4 se. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally 5 construed . . . and a pro se complaint, however inartfully pleaded, must be held to less stringent 6 standards than formal pleadings drafted by lawyers[.]” (internal quotation marks omitted)). 7 On April 24, 2017, Best was driving from South Lake Tahoe to Sonoma County, when he 8 exited United States Highway 101 (“US 101”) and drove into a shopping plaza at approximately 9 10:15 or 10:20 PM. (Dkt. No. 32 at 3; see also Dkt. No. 35-1 at 2, 3.) Best walked around a 10 building where he relieved himself in a bush behind a tree. (Dkt. No. 32 at 4.) Best walked back 11 to his car when he was approached by an officer with his weapon raised, and who instructed Best 12 to get on the ground. (Id.) Best was handcuffed, escorted into a police car, and was told he would 13 be charged with felony burglary. (Id.) 14 Best was taken to a jail located in Santa Rosa. (Id.) Best was in a “waiting area” for 15 inmates when he was called on a loud speaker to the intake desks. (Id. at 5.) Best was asked if he 16 was on probation, and he responded that he “would prefer not to answer that question without an 17 attorney present.” (Id.) Best was instructed to go back to the waiting area, before the deputy 18 handling intake instructed him to go to a holding cell. (Id.) Best stopped, and two deputies, 19 including the deputy who was handling intake, approached Best, and grabbed his arms from 20 21 1 Sonoma County requests for the Court to take judicial notice of various documents, 22 including: (1) Best’s Request for Permission to File the Government Claim Late; (Dkt. No. 35-1) and (2) Notice of Return of Untimely Claim. (Dkt. No. 35-2.) a court may take judicial notice of 23 public records, including the filing date and contents of Plaintiff’s Request for Late Claim Filing and Claim against the County of Sonoma. See Shaw v. City of Porterville, No. 1:15-cv-671-SKO, 24 2015 WL 3795026, at *4 (E.D. Cal. June 17, 2015) (court may take judicial notice of tort claim and notice of insufficiency of claim, where authenticity undisputed, essential to plaintiff’s claims, 25 and no opposition); Clarke v. Upton, 703 F.Supp.2d 1037, 1042 (E.D. Cal. 2010) (taking judicial notice of tort claim and rejection of claim). It is proper for the Court to take judicial notice of the 26 tort claim and its contents to prevent a plaintiff from evading a Rule 12(b)(6) motion. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (court may consider document if authenticity not 27 questioned in order to prevent plaintiff from prevailing on Rule 12(b)(6) motion by omitting 1 behind him. (Id. at 5-6.) Best was placed in a hold he identifies as a “rear naked choke” or a 2 “carotid hold” and was forced into unconsciousness. (Id. at 6.) 3 Best regained consciousness while on the ground, on his stomach, face down. (Id.) One 4 officer had his right arm around Best’s neck with the officer’s right knee in Best’s back with most 5 of the officer’s weight pressing down on Best. (Id.) The other officer had a hold of his arms. (Id. 6 at 7.) He was escorted to a holding cell, placed to face toward a wall, and was warned that if he 7 moved, he would be tasered. (Id.) 8 Best states that no other deputies would identify the names of the deputies who interacted 9 with him. (Id. at 8.) Best wrote down his recollection of the events, gave the papers documenting 10 his recollections to a deputy, who handed the papers back to Best. (Id.) The deputy left the paper 11 on the floor where it was eventually thrown out. (Id.) 12 The district attorney ultimately did not press charges against Best. (Id.) Following his 13 release, Best filed a series of complaints with the Sonoma County Sheriffs Department and various 14 government entities. (Id. at 8-9.) 15 On October 13, 2018, Best mailed a request for permission to file a government claim late, 16 which was received by the County of Sonoma on October 17, 2018. (Dkt. No. 35-1 at 2.) In the 17 attached claim against the County of Sonoma form, Best identifies the date of the incident as April 18 24, 2017, and the time of the incident as “[a]pproximately 11:30 PM.” (Id. at 3.) The document 19 also includes a narrative mirroring the allegations in the operative complaint. (Id. at 4-8.) The 20 County of Sonoma mailed a letter dated October 31, 2018, explaining that the county would not be 21 accepting the claim for consideration as it was presented outside the time required by sections 901 22 and 911.2 of the California Government Code. (Dkt. No. 35-2 at 2.) 23 Best commenced the instant lawsuit on April 25, 2019. (Dkt. No. 1.) 24 II. LEGAL FRAMEWORK 25 A. Motion to Dismiss 26 Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for 27 failure to state a claim upon which relief may be granted. Dismissal for failure to state a claim 1 sufficient facts alleged under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 2 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 3 Cir. 1988)). 4 The complaint must plead “enough facts to state a claim [for] relief that is plausible on its 5 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face 6 “when the plaintiff pleads factual content that allows the court to draw the reasonable inference 7 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 8 (2009). If the facts alleged do not support a reasonable inference of liability, stronger than a mere 9 possibility, the claim must be dismissed. Id. at 678-79; see also In re Gilead Scis. Sec. Litig., 536 10 F.3d 1049, 1055 (9th Cir. 2008) (stating that a court is not required to accept as true “allegations 11 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”). 12 A complaint that falls short of the Rule 8(a) standard may be dismissed if it fails to state a 13 claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “Dismissal under Rule 12(b)(6) 14 is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to 15 support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 16 1104 (9th Cir. 2008). For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] 17 factual allegations in the complaint as true and construe[s] the pleadings in the light most 18 favorable to a nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 19 1031 (9th Cir. 2008). Mere “conclusory allegations of law and unwarranted inferences are 20 insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 21 2004). 22 B. Motion for a More Definite Statement 23 Under Federal Rule of Civil Procedure 12(e), “[a] party may move for a more definite 24 statement of a pleading to which a responsive pleading is allowed but which is so vague or 25 ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). A motion 26 filed pursuant to Rule 12(e) “must point out the defects complained of and the details desired.” Id. 27 Generally, “[m]otions for a more definite statement are viewed with disfavor, and are rarely 1 example, “[s]uch a motion is likely to be denied where the substance of the claim has been 2 alleged, even though some of the details are omitted.” True v. Am. Honda Motor Co., Inc., 520 F. 3 Supp. 2d 1175, 1180 (C.D. Cal. 2007) (internal quotation marks omitted). By contrast, “[a] Rule 4 12(e) motion is more likely to be granted where the complaint is so general that ambiguity arises 5 in determining the nature of the claim or the parties against whom it is being made.” Sagan v. 6 Apple Comput., Inc., 874 F. Supp. 1072, 1077 (C.D. Cal. 1994). 7 C. Motion for Leave to Amend 8 Rule 15 provides for amendment of a pleading “once as a matter of course” within the 9 confines of certain requirements not met here, see Fed. R. Civ. P. 15(1), and “in all other cases . . . 10 only with the opposing party’s written consent or the court’s leave.” See Fed. R. Civ. P. 15(2). 11 Although Rule 15 instructs courts to give leave freely “when justice so requires,” such analysis 12 requires consideration of the following factors: (1) any bad faith or dilatory motive of the moving 13 party; (2) any prejudice to the opposing party; (3) undue delay; and (4) the futility of the proposed 14 amendment. See Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990); see also 15 Alzheimer’s Inst. of Am. v. Elan Corp. PLC, 274 F.R.D. 272, 276 (N.D. Cal. 2011). 16 III. MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT, AND MOTION FOR LEAVE TO AMEND 17 Here, County of Sonoma contends in its motions that both the California state law claims, 18 and federal law claims are time barred, and that, even if such claims were not time barred, Best 19 fails to allege sufficient facts state a viable claim against Sonoma County. Best asserts that he has 20 stated sufficient facts, but that, if he has not so pled, he requests an additional opportunity to 21 amend his pleadings. The Court first considers Best’s state law claims before addressing Best’s 22 federal law claims. 23 A. State Law Claims Are Time Barred 24 Sonoma County avers that Best’s state law claims – claims for assault, battery, excessive 25 force, negligence, and torture – are time barred because Best did not – and cannot – allege 26 compliance with the California Tort Claims Act. 27 The Tort Claims Act, as reflected in government code section 911.2, provides: “A claim 1 relating to a cause of action for death or for injury to person . . . shall be presented as provided in 2 Article 2 (commencing with [s]ection 915) not later than six months after the accrual of the cause 3 of action.” The statute allows for submission of late claims under certain circumstances; 4 specifically, section 911.4 specifically provides that a written application for leave to present a late 5 tort claim “shall be presented to the public entity as provided in Article 2 (commencing with 6 [s]ection 915) within a reasonable time not to exceed one year after the accrual of the cause of 7 action. . . .” See Cal. Gov. Code § 911.4 (emphasis added). 8 It is well-settled that failure to comply with the claim presentation requirements of the Tort 9 Claims Act precludes any civil action against the public entity. See Fall River Joint Unified 10 School Dist. v. Sup. Ct., 206 Cal. App. 3d 431, 434 (1988); State of Cal. ex rel. Dept. of Trans. v. 11 Sup. Ct., 159 Cal. App. 3d 331, 334-35 (1984). “Compliance with the claims statute is mandatory 12 and failure to file a claim is fatal to the cause of action.” Pacific Tel. & Tel. Co. v. Cnty. of 13 Riverside, 106 Cal. App. 3d 183, 188 (1980). See also Myers v. Cnty. of Orange, 6 Cal. App. 3d 14 626, 636-637 (1970) (claim statutes are comparable to a statute of limitations and have the same 15 effect of baring a claim when not timely presented); Karim-Panahi v. Los Angeles Police Dep’t, 16 839 F.2d 621, 627 (9th Cir. 1988) (dismissing claims against public employees and entities for 17 failure to allege compliance with the Tort Claims Act). 18 Here, Best did not, and cannot, allege compliance with the Tort Claims Act, and thus, 19 Best’s state law claims must be dismissed. Best sought permission under the Tort Claims Act on 20 October 17, 2018 – more than a year and a half after the incident. (See Dkt. No. 35-1 at 2.) This 21 is more than the six months generally required by the statute under section 911.2, and more than 22 the one year permitted in certain circumstances in section 911.4. Significantly, no amendment of 23 the pleadings can cure this defect. Accordingly, the Court GRANTS Sonoma County’s motion to 24 dismiss Best’s state law claims, and DENIES Best’s request for leave to amend his pleadings as to 25 these claims. Best’s state law claims are DISMISSED WITH PREJUDICE. 26 B. Federal Law Claims Are Not Time Barred But Fail to Allege Sufficient Facts 27 Sonoma County avers that Best’s federal law claims are also time barred but that, even if 1 42 U.S.C. section 1983 does not contain a statute of limitations, but the Ninth Circuit has 2 looked to California’s general personal injury statute of limitations for section 1983 lawsuits. Del 3 Perico v. Thornsley, 877 F.2d 785, 786 (9th Cir. 1989) (applying former California Code of Civil 4 Procedure section 340(3)); Usher v. City of Los Angeles, 828 F.2d 556, 558-561 (9th Cir. 1987) 5 (same); Owens v. Okure, 488 U.S. 235, 236 (1989) (statute of limitations for section 1983 claims 6 shall borrow the personal injury statute of limitations from the state in which the action arose). 7 California’s current statute of limitations for personal injury actions is 2 years. See Cal. Civ. Pro. 8 § 335.1. 9 Here, Best’s initial complaint was filed on April 25, 2019, which is two years and one day 10 after the date on which the incident occurred – April 24, 2017. On this basis, therefore, Best’s 11 federal claims would seem to be time barred. However, Best seeks to amend the operative 12 amended complaint to add allegations that explain that while he was arrested the evening of April 13 24, 2017, the alleged interaction between him and deputies occurred after midnight, and on April 14 25, 2017. (See Dkt. No. 40-1 at 6 (“There was a clock on the wall, and it read 12:45, AM. The 15 date was 4/25/2017.”), 9 (“I asked to see the nurse again, but it was not until the clock on the wall 16 read 3:30 AM (the early morning of April 25th of 2017) that I saw the nurse again.”).) At this 17 preliminary stage, while there is some evidence that the interaction between Best and the deputies 18 may have occurred on April 24, 2017 (see Dkt. No. 35-1 at 3 (“Approximately 11:30 PM”)), the 19 Court cannot definitively conclude that amendment would be futile, especially where Best was 20 arrested and brought to the jail near the end of the day on April 24, 2017. See Saul v. United 21 States, 928 F.2d 829, 843 (9th Cir. 1991) (holding that leave to amend may be denied if the 22 amendment would be futile, or where the amended complaint would be subject to dismissal). 23 However, after a review of the amended complaint, the Court concludes that Best has 24 failed to plead its claim against Sonoma County adequately. A municipal entity, including a 25 county, can be liable where the action alleged to be unconstitutional is done pursuant to a 26 governmental policy or custom under Monell v. New York City Dept. of Social Services, 436 U.S. 27 658, 691 (1978). Under section 1983, a public entity “cannot be held liable solely because it 1 Monell may be stated in one of three circumstances: (1) when official policies or established 2 customs inflict a constitutional injury; (2) when omissions or failures to act amount to a local 3 government policy of “deliberate indifference” to constitutional rights; or (3) when a local 4 government official with final policy-making authority ratifies a subordinate’s unconstitutional 5 conduct. See Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010) 6 (synthesizing authorities). 7 Here, Best does not adequately plead sufficient facts in the operative amended complaint to 8 demonstrate one of these three circumstances. At this juncture, where Best has already filed one 9 amended complaint, the Court cannot conclude that leave to amend to permit Best to address these 10 deficiencies would be futile. See AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th 11 Cir. 2012) (holding that “plausible facts supporting . . . a policy or custom could . . . cure[] the 12 deficiency in [a] Monell claim.”). Accordingly, the Court GRANTS Sonoma County’s motion to 13 dismiss Best’s state law claims, and GRANTS Best’s request for leave to amend his pleadings as to 14 Best’s federal law claims. 15 IV. CONCLUSION 16 For the foregoing reasons, Sonoma County’s motion to dismiss is GRANTED, and Best’s 17 request for leave to amend is GRANTED IN PART and DENIED IN PART. Best’s state law claims are 18 DISMISSED WITH PREJUDICE. To the extent that Best files a second amended complaint as to the 19 remaining federal law claims, Best shall do so on or before Monday, March 9, 2020. 20 The Court advises Best that a Handbook for Pro Se Litigants, which contains helpful 21 information about proceeding without an attorney, is available in the Clerk’s office or through the 22 Court’s website, http://cand.uscourts.gov/pro-se. 23 Assistance is available through the Legal Help Center. Parties can make an appointment to 24 speak with an attorney who can provide basic legal information and assistance. The Help Center 25 does not see people on a “drop-in” basis, and will not be able to represent parties in their cases. 26 There is no charge for this service. To make an appointment with the Legal Help Center, you may: 27 (1) sign up in person on the appointment book outside the Legal Help Center offices at the San 1 Francisco, California or the Oakland Courthouse, located at 1301 Clay Street, 4th Floor, Room 2 || 470S, Oakland, California; (2) call 415-782-8982; or (3) email federalprobonoproject @ sfbar.org. 3 || The Help Center’s website is available at https://cand.uscourts.gov/legal-help. 4 This Order terminates Docket Numbers 34, 40. 5 IT Is SO ORDERED. 6 7 Dated: February 14, 2020 8 Lapent Haptrfflees, YVONNE GONZALEZ ROGERS 9 UNITED STATES DISTRICT JUDGE 10 11

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