1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DAVID KENNEDY, No. 2:19-cv-02311-MCE-DB 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 COUNTY OF SOLANO, et al., 15 Defendants. 16 17 By way of this action, Plaintiff seeks to recover for injuries sustained as a result of 18 his arrest by officers employed by the City of Vallejo (“City Defendants”) and his 19 subsequent treatment at the hands of the County of Solano and its employees (“County 20 Defendants”). Presently before the Court are two Motions to Dismiss filed by each set of 21 Defendants. ECF Nos. 13, 32. For the following reasons, those Motions are GRANTED 22 with leave to amend in part and DENIED in part.1 23 /// 24 /// 25 /// 26 /// 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. See E.D. Cal. Local R. 230(g). 1 BACKGROUND2 2 3 According to Plaintiff, the claims underlying this complaint initially arose on 4 February 25, 2017, when City of Vallejo police officers arrested him for lawfully 5 protesting the detention of a third party. Officer William Carpenter initiated Kennedy's 6 arrest, citing Plaintiff’s loud verbal protest and filming of the detention of a panhandler 7 and his violation of penal codes prohibiting interference with an officer's duty, along with 8 resisting arrest and battery upon an officer. Officers Joseph, Tribble, and McLeod 9 purportedly assisted with Plaintiff’s physical detention and arrest, which included tackling 10 Plaintiff at some point. As a result of Plaintiff’s conduct, the Solano County District 11 Attorney charged him with violations of California Penal Code Sections 69, 243(b), and 12 148(a)(1). The charges, however, were dropped in July 2019.3 13 In the interim, after Plaintiff was arrested on February 26, 2017, at approximately 14 1:30 a.m., he was transferred and booked into the Solano County Jail. Plaintiff contends 15 that Solano County Sherriff’s Department Correctional Officer Ririe Fields performed a 16 strip search on him. Upon completion of the strip search, Plaintiff requested a blanket, 17 but Officer Fields allegedly responded by saying, "fuck your blanket." Plaintiff reached 18 for a blanket anyway, and Fields grabbed him by the throat and pinned him against a 19 glass barrier. Fields then punched Plaintiff in the face. An unidentified officer struck 20 Plaintiff in the kidney with his knee, after which Fields performed a leg-sweep on him. 21 As a result, Plaintiff fell to the floor face-first, dislodging his artificial teeth. Fields 22 responded by taunting Plaintiff, “I knew that mother-fucker would come out!" Finally, 23 Fields pulled Plaintiff’s arm behind his back until it emitted a loud cracking sound. 24 Plaintiff was thereafter transported to the hospital where he was diagnosed with a 25 2 The following facts taken, primarily verbatim, from Plaintiff’s First Amended Complaint. 26 3 The Court notes that Plaintiff also lodges claims at City of Solano Police Officer Nickolas Sloan. 27 It appears that this Defendant has not yet been served. Accordingly, not later than five (5) days following the date this Order is electronically filed, Plaintiff is ordered to show cause in writing as to why Defendant 28 Sloan should not be dismissed. 1 fractured elbow and a concussion. He also suffered a black eye and lacerated lip. 2 Given the foregoing events, Plaintiff was unable to start a new job on February 27, 2017. 3 4 STANDARD 5 6 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 7 Procedure 12(b)(6), all allegations of material fact must be accepted as true and 8 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 9 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain 10 statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 12 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 13 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 14 detailed factual allegations. However, “a plaintiff's obligation to provide the grounds of 15 his entitlement to relief requires more than labels and conclusions, and a formulaic 16 recitation of the elements of a cause of action will not do.” Id. (internal citations and 17 quotations omitted). A court is not required to accept as true a “legal conclusion 18 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 19 Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief 20 above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & 21 Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the 22 pleading must contain something more than “a statement of facts that merely creates a 23 suspicion [of] a legally cognizable right of action”)). 24 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 25 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 26 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 27 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 28 the nature of the claim, but also ‘grounds' on which the claim rests.” Id. (citing Wright & 1 Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to 2 relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their 3 claims across the line from conceivable to plausible, their complaint must be dismissed.” 4 Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge 5 that actual proof of those facts is improbable, and ‘that a recovery is very remote and 6 unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 7 A court granting a motion to dismiss a complaint must then decide whether to 8 grant leave to amend. Leave to amend should be “freely given” where there is no 9 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 10 to the opposing party by virtue of allowance of the amendment, [or] futility of the 11 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 12 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 13 be considered when deciding whether to grant leave to amend). Not all of these factors 14 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 15 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 16 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 17 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 18 Inc., 499 F.3d 1048, 1056 (9th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DAVID KENNEDY, No. 2:19-cv-02311-MCE-DB 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 COUNTY OF SOLANO, et al., 15 Defendants. 16 17 By way of this action, Plaintiff seeks to recover for injuries sustained as a result of 18 his arrest by officers employed by the City of Vallejo (“City Defendants”) and his 19 subsequent treatment at the hands of the County of Solano and its employees (“County 20 Defendants”). Presently before the Court are two Motions to Dismiss filed by each set of 21 Defendants. ECF Nos. 13, 32. For the following reasons, those Motions are GRANTED 22 with leave to amend in part and DENIED in part.1 23 /// 24 /// 25 /// 26 /// 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. See E.D. Cal. Local R. 230(g). 1 BACKGROUND2 2 3 According to Plaintiff, the claims underlying this complaint initially arose on 4 February 25, 2017, when City of Vallejo police officers arrested him for lawfully 5 protesting the detention of a third party. Officer William Carpenter initiated Kennedy's 6 arrest, citing Plaintiff’s loud verbal protest and filming of the detention of a panhandler 7 and his violation of penal codes prohibiting interference with an officer's duty, along with 8 resisting arrest and battery upon an officer. Officers Joseph, Tribble, and McLeod 9 purportedly assisted with Plaintiff’s physical detention and arrest, which included tackling 10 Plaintiff at some point. As a result of Plaintiff’s conduct, the Solano County District 11 Attorney charged him with violations of California Penal Code Sections 69, 243(b), and 12 148(a)(1). The charges, however, were dropped in July 2019.3 13 In the interim, after Plaintiff was arrested on February 26, 2017, at approximately 14 1:30 a.m., he was transferred and booked into the Solano County Jail. Plaintiff contends 15 that Solano County Sherriff’s Department Correctional Officer Ririe Fields performed a 16 strip search on him. Upon completion of the strip search, Plaintiff requested a blanket, 17 but Officer Fields allegedly responded by saying, "fuck your blanket." Plaintiff reached 18 for a blanket anyway, and Fields grabbed him by the throat and pinned him against a 19 glass barrier. Fields then punched Plaintiff in the face. An unidentified officer struck 20 Plaintiff in the kidney with his knee, after which Fields performed a leg-sweep on him. 21 As a result, Plaintiff fell to the floor face-first, dislodging his artificial teeth. Fields 22 responded by taunting Plaintiff, “I knew that mother-fucker would come out!" Finally, 23 Fields pulled Plaintiff’s arm behind his back until it emitted a loud cracking sound. 24 Plaintiff was thereafter transported to the hospital where he was diagnosed with a 25 2 The following facts taken, primarily verbatim, from Plaintiff’s First Amended Complaint. 26 3 The Court notes that Plaintiff also lodges claims at City of Solano Police Officer Nickolas Sloan. 27 It appears that this Defendant has not yet been served. Accordingly, not later than five (5) days following the date this Order is electronically filed, Plaintiff is ordered to show cause in writing as to why Defendant 28 Sloan should not be dismissed. 1 fractured elbow and a concussion. He also suffered a black eye and lacerated lip. 2 Given the foregoing events, Plaintiff was unable to start a new job on February 27, 2017. 3 4 STANDARD 5 6 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 7 Procedure 12(b)(6), all allegations of material fact must be accepted as true and 8 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 9 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain 10 statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 12 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 13 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 14 detailed factual allegations. However, “a plaintiff's obligation to provide the grounds of 15 his entitlement to relief requires more than labels and conclusions, and a formulaic 16 recitation of the elements of a cause of action will not do.” Id. (internal citations and 17 quotations omitted). A court is not required to accept as true a “legal conclusion 18 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 19 Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief 20 above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & 21 Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the 22 pleading must contain something more than “a statement of facts that merely creates a 23 suspicion [of] a legally cognizable right of action”)). 24 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 25 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 26 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 27 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 28 the nature of the claim, but also ‘grounds' on which the claim rests.” Id. (citing Wright & 1 Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to 2 relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their 3 claims across the line from conceivable to plausible, their complaint must be dismissed.” 4 Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge 5 that actual proof of those facts is improbable, and ‘that a recovery is very remote and 6 unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 7 A court granting a motion to dismiss a complaint must then decide whether to 8 grant leave to amend. Leave to amend should be “freely given” where there is no 9 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 10 to the opposing party by virtue of allowance of the amendment, [or] futility of the 11 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 12 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 13 be considered when deciding whether to grant leave to amend). Not all of these factors 14 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 15 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 16 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 17 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 18 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 19 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 20 1989) (“Leave need not be granted where the amendment of the complaint . . . 21 constitutes an exercise in futility . . . .”)). 22 23 ANALYSIS 24 25 A. County Defendants’ Motion to Dismiss 26 The County Defendants argue, among other things, that Plaintiff has failed to 27 state a claim against them as a matter of law because all of his causes of action are 28 barred by the statute of limitations. The parties agree that the limitations period in this 1 case is two years. Defs’ Mot., ECF No. 13 at 4, Pl.’s Opp., ECF No. 15, at 4. 2 Accordingly, since the conduct underlying Plaintiff’s Complaint took place in February 3 2017, and he did not file his complaint until November 2019, unless some exception to 4 the rule applies, his claims against the County Defendants are barred. 5 Plaintiff contends his delay is excused under California’s Government Code, 6 which provides: 7 No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may 8 bring a civil action for money or damages against a peace officer or the public entity employing a peace officer 9 based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act 10 or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against 11 the accused are pending before a superior court. 12 Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period 13 that the charges are pending before a superior court. 14 Cal. Gov. Code § 945.3 (emphasis added). Under this provision the statute of 15 limitations would have been tolled during the time Plaintiff was being prosecuted 16 essentially for resisting arrest. The problem with this argument here, however, is that 17 this statute has no bearing on the claims against the County, which are entirely 18 unrelated to the legality of his arrest by the City. Stated another way, the determination 19 of whether the County’s conduct was lawful is wholly independent of disposition of the 20 criminal charges lodged against Plaintiff. The statute is therefore not tolled, and 21 Plaintiff’s claims are barred. Accordingly, the County Defendants’ Motion to Dismiss is 22 GRANTED with leave to amend. 23 B. City Defendants’ Motion to Dismiss 24 The City Defendants move for dismissal arguing that: (1) “Plaintiff’s seventh 25 ‘cause of action’ for Fourteenth Amendment violation arising from alleged excessive use 26 of force is really a Fourth Amendment claim”; (2) “[t]he First, Fourth, and Seventh 27 ‘causes of action’ for violation of the Fourth Amendment arising from alleged excessive 28 use of force against the individual defendants are redundant of one another”; (3) “[a]ny 1 and all claims pursuant to 42 U.S.C. section 1983 against . . . Officers Carpenter, 2 Joseph, and McLeod are not sufficiently alleged”; (4) “[a]ll ‘Official Capacity’ Claims 3 against the individual[] defendants are redundant to the claims against the City”; 4 (5) “Plaintiff’s Monell claim fails to state sufficient facts”; (6) “[t]he Sixth ‘cause of action’ 5 Fails to Allege Sufficient facts against [former] Chief Bidou”; and (8) “[a]ll state claims are 6 barred by failure to comply with the California Government Tort Claims Act.” City Defs.’ 7 Mot., ECF No. 32, at 2-3.4 The Court declines to dismiss any of Plaintiff’s claims 8 themselves as redundant or insufficiently pled. Nor will it strike paragraph 40. The Court 9 does find, however, that the official capacity allegations against the individual 10 Defendants are redundant of those claims against the City, and they are thus 11 DISMISSED with leave to amend. In addition, Plaintiff has failed to adequately allege 12 that it complied with the California Government Tort Claims Act as to his state law 13 causes of action, which are accordingly DISMISSED with leave to amend as well. 14 15 CONCLUSION 16 17 For the reasons set forth above, Defendants’ Motions to Dismiss (ECF Nos. 13, 18 32) are GRANTED with leave to amend in part and DENIED in part. Not later than 19 twenty (20) days following the date this memorandum and order is electronically filed, 20 Plaintiff may (but is not required to) file an amended complaint. If no amended complaint 21 is timely filed, this action will be deemed dismissed with prejudice upon no further notice 22 /// 23 /// 24 /// 25 /// 26 /// 27 4 City Defendants also argue that the Monell-type allegations at Paraph 40 should be stricken 28 because they are “not sufficiently similar and/or post-date the incident.” Id. 2:4 UV VELL INS ED MMIC OY POO MOE eT OY
1 || to the parties. In the meantime, not later than five (5) days following the date this Order 2 | is electronically filed, Plaintiff is ordered to show cause in writing as to why Defendant 3 | Nickolas Sloan should not be dismissed as well. 4 IT |S SO ORDERED. 5 | Dated: August 25, 2020 Matar LEK: Whip AX XC - ’ SENIOR UNITED STATES URTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28