1 2 3 6 7 JIMMY K LEE, Case No. 23-cv-00778-PCP
8 Plaintiff, ORDER DENYING MOTION TO 9 v. STRIKE AND GRANTING IN PART MOTION TO DISMISS 10 CITY OF SAN JOSE, et al., 11 Defendants. Re: Dkt. No. 35
12 13 Pro se plaintiff Jimmy K. Lee is representing himself in this case against the City of San 14 Jose and police officer Michael Roberson. Mr. Lee alleges that he was arrested in December 2019 15 following an altercation. After the charges against him were dismissed, Mr. Lee brought claims 16 against the City and Officer Roberson for false arrest, violations of 42 U.S.C. § 1983, and 17 malicious prosecution. On August 7, 2023, the Court dismissed several of these claims, some with 18 leave to amend. Mr. Lee then filed the present amended complaint, and Defendants now move to 19 strike portions of the complaint and to dismiss some of his claims. For the reasons that follow, the 20 motion to strike is denied and the motion to dismiss is granted as to all Section 1983 claims 21 against the City and as to the Section 1983 claims against Officer Roberson other than the arrest 22 claim. The other claims may proceed. 23 I. Background 24 The amended complaint alleges the following facts. Mr. Lee was arrested on December 15, 25 2019 following an altercation at a Home Depot parking lot. He got into a verbal argument with a 26 man he calls the “alleged victim.” After Officer Roberson and other police officers arrived, a 27 Home Depot employee told police Mr. Lee had threatened the other man. The employee says he 1 gonna shoot you.” The alleged victim told police, “I didn’t hear him say, ‘I’m going to shoot 2 you,’” instead stating, “I thought he meant sue, because of his accent, and not shoot.” Mr. Lee 3 maintains that he never made a death threat. Several bystanders also say they saw Mr. Lee pick up 4 a PVC pipe from his car at some point, which Mr. Lee says was for self-defense. One Home Depot 5 employee says he saw Mr. Lee “whap” the alleged victim’s car with the pipe, but Mr. Lee contests 6 this. Eventually, Mr. Lee either “threw,” “toss[ed]” or “hand[ed ]” the pipe to a different 7 employee. 8 Mr. Lee was placed under arrest for making a death threat and for assault in violation of 9 California Penal Code §§ 422(a) and 245(a)(1). He spent a day in jail before being released on 10 bail. The District Attorney brought charges, but the state court dismissed them in October 2021 11 under a statute authorizing dismissal “in furtherance of justice.” See Cal. Pen. Code § 1385(a). 12 The witness statements were captured by the responding officers’ bodycams. The alleged 13 victim also recorded at least part of the incident on his own cell phone. Police officers including 14 Officer Roberson reviewed the cell phone video at the scene and were recorded on bodycam 15 discussing the video’s contents. Mr. Lee pleads that the cell phone video was “finally produced as 16 exculpatory evidence,” although he alleges that at the time of arrest, Officer Roberson failed to 17 retain the video after viewing it. Mr. Lee alleges that Officer Roberson “intentionally suppressed” 18 the existence of the video in his police report to the D.A., who Mr. Lee now claims was “never 19 aware of the existence of such cell videos.” The specifics are not clear, but Mr. Lee appears to 20 claim that while at least one video was eventually produced, this video “contains only the tail end 21 of the incident” and “had been cut.” He claims there are other exculpatory cell videos in existence. 22 He further claims that, at the time of his state court criminal hearing, the prosecutor told the judge 23 that the alleged victim still had relevant videos on his cell phone. Mr. Lee says these videos were 24 never produced to him because the entire case against him was dismissed. 25 After the criminal case was dismissed, Mr. Lee filed the present suit in state court, which 26 Defendants removed to this Court. On August 11, 2023, after the Court dismissed some of his 27 claims with leave to amend, Mr. Lee filed the present amended complaint. Defendants now move 1 II. Legal Standards 2 Rule 12(b)(6) governs dismissal for “failure to state a claim upon which relief can be 3 granted.” A complaint must “plausibly suggest” that the plaintiff is entitled to relief, with facts that 4 allow the Court “to draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, 5 556 U.S. 662, 678, 681 (2009). The Court must “accept all factual allegations … as true and 6 construe the pleadings in the light most favorable to the nonmoving party.” Rowe v. Educ. Credit 7 Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009). 8 Rule 12(f) allows the Court to “strike … any redundant, immaterial, impertinent, or 9 scandalous matter.” A motion to strike is a drastic remedy. These motions are generally disfavored 10 and not granted unless the moving party can clearly show that the challenged material could not 11 possibly relate to the controversy and that allowing it to remain would cause significant prejudice. 12 See, e.g., Digit. Verification Sys., LLC v. Foxit Software Inc., 21-CV-08529-YGR, 2022 WL 13 2800081 (N.D. Cal. Jan. 11, 2022); Freeman v. ABC Legal Servs., Inc., 877 F. Supp. 2d 919, 923 14 (N.D. Cal. 2012); 5C Wright & Miller, Fed. Prac. & Proc. Civ. § 1382 (3d ed.) (collecting cases). 15 Pleadings by pro se plaintiffs like Mr. Lee “are liberally construed, particularly where civil 16 rights claims are involved.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 17 III. Discussion 18 The Court previously denied Defendants’ motion to dismiss several of Mr. Lee’s claims 19 but granted it as to others, dismissing some claims with leave to amend and some without. Mr. Lee 20 then filed the amended complaint Defendants now challenge. In the interest of clarity, the status of 21 each claim in Mr. Lee’s Fourth Amended Complaint is addressed in sequence below. 22 A. The State Law False Arrest Claims Against the City May Proceed. 23 Mr. Lee’s first cause of action is a state law false arrest claim against the City. The Court 24 previously denied Defendants’ motion to dismiss this claim because the pleadings raise a question 25 of fact as to whether the police officers had probable cause. This claim therefore remains. 26 Defendants move to strike allegations that Mr. Lee has added to this portion of the 27 complaint pertaining to the cell phone video Officer Roberson allegedly failed to preserve, which 1 these allegations could not possibly relate to any part of the subject matter of this case, nor have 2 they explained how any prejudice would result if the allegations remain. Rules 8 and 12 set a high 3 bar for the factual allegations a plaintiff must make in order to plausibly state a claim and avoid 4 dismissal. It is therefore not surprising that a complaint may sometimes include more allegations 5 than strictly necessary to state a claim. But overinclusion alone does not require that material be 6 stricken under Rule 12(f)—especially where, as here, a party is proceeding pro se. 7 Further, while one of the claims based on the cell phone video allegations has indeed been 8 dismissed, there are other active claims to which these allegations might still pertain. For example, 9 in paragraph 105 of the amended complaint as part of his malicious prosecution claim against 10 Officer Roberson, Mr.
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1 2 3 6 7 JIMMY K LEE, Case No. 23-cv-00778-PCP
8 Plaintiff, ORDER DENYING MOTION TO 9 v. STRIKE AND GRANTING IN PART MOTION TO DISMISS 10 CITY OF SAN JOSE, et al., 11 Defendants. Re: Dkt. No. 35
12 13 Pro se plaintiff Jimmy K. Lee is representing himself in this case against the City of San 14 Jose and police officer Michael Roberson. Mr. Lee alleges that he was arrested in December 2019 15 following an altercation. After the charges against him were dismissed, Mr. Lee brought claims 16 against the City and Officer Roberson for false arrest, violations of 42 U.S.C. § 1983, and 17 malicious prosecution. On August 7, 2023, the Court dismissed several of these claims, some with 18 leave to amend. Mr. Lee then filed the present amended complaint, and Defendants now move to 19 strike portions of the complaint and to dismiss some of his claims. For the reasons that follow, the 20 motion to strike is denied and the motion to dismiss is granted as to all Section 1983 claims 21 against the City and as to the Section 1983 claims against Officer Roberson other than the arrest 22 claim. The other claims may proceed. 23 I. Background 24 The amended complaint alleges the following facts. Mr. Lee was arrested on December 15, 25 2019 following an altercation at a Home Depot parking lot. He got into a verbal argument with a 26 man he calls the “alleged victim.” After Officer Roberson and other police officers arrived, a 27 Home Depot employee told police Mr. Lee had threatened the other man. The employee says he 1 gonna shoot you.” The alleged victim told police, “I didn’t hear him say, ‘I’m going to shoot 2 you,’” instead stating, “I thought he meant sue, because of his accent, and not shoot.” Mr. Lee 3 maintains that he never made a death threat. Several bystanders also say they saw Mr. Lee pick up 4 a PVC pipe from his car at some point, which Mr. Lee says was for self-defense. One Home Depot 5 employee says he saw Mr. Lee “whap” the alleged victim’s car with the pipe, but Mr. Lee contests 6 this. Eventually, Mr. Lee either “threw,” “toss[ed]” or “hand[ed ]” the pipe to a different 7 employee. 8 Mr. Lee was placed under arrest for making a death threat and for assault in violation of 9 California Penal Code §§ 422(a) and 245(a)(1). He spent a day in jail before being released on 10 bail. The District Attorney brought charges, but the state court dismissed them in October 2021 11 under a statute authorizing dismissal “in furtherance of justice.” See Cal. Pen. Code § 1385(a). 12 The witness statements were captured by the responding officers’ bodycams. The alleged 13 victim also recorded at least part of the incident on his own cell phone. Police officers including 14 Officer Roberson reviewed the cell phone video at the scene and were recorded on bodycam 15 discussing the video’s contents. Mr. Lee pleads that the cell phone video was “finally produced as 16 exculpatory evidence,” although he alleges that at the time of arrest, Officer Roberson failed to 17 retain the video after viewing it. Mr. Lee alleges that Officer Roberson “intentionally suppressed” 18 the existence of the video in his police report to the D.A., who Mr. Lee now claims was “never 19 aware of the existence of such cell videos.” The specifics are not clear, but Mr. Lee appears to 20 claim that while at least one video was eventually produced, this video “contains only the tail end 21 of the incident” and “had been cut.” He claims there are other exculpatory cell videos in existence. 22 He further claims that, at the time of his state court criminal hearing, the prosecutor told the judge 23 that the alleged victim still had relevant videos on his cell phone. Mr. Lee says these videos were 24 never produced to him because the entire case against him was dismissed. 25 After the criminal case was dismissed, Mr. Lee filed the present suit in state court, which 26 Defendants removed to this Court. On August 11, 2023, after the Court dismissed some of his 27 claims with leave to amend, Mr. Lee filed the present amended complaint. Defendants now move 1 II. Legal Standards 2 Rule 12(b)(6) governs dismissal for “failure to state a claim upon which relief can be 3 granted.” A complaint must “plausibly suggest” that the plaintiff is entitled to relief, with facts that 4 allow the Court “to draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, 5 556 U.S. 662, 678, 681 (2009). The Court must “accept all factual allegations … as true and 6 construe the pleadings in the light most favorable to the nonmoving party.” Rowe v. Educ. Credit 7 Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009). 8 Rule 12(f) allows the Court to “strike … any redundant, immaterial, impertinent, or 9 scandalous matter.” A motion to strike is a drastic remedy. These motions are generally disfavored 10 and not granted unless the moving party can clearly show that the challenged material could not 11 possibly relate to the controversy and that allowing it to remain would cause significant prejudice. 12 See, e.g., Digit. Verification Sys., LLC v. Foxit Software Inc., 21-CV-08529-YGR, 2022 WL 13 2800081 (N.D. Cal. Jan. 11, 2022); Freeman v. ABC Legal Servs., Inc., 877 F. Supp. 2d 919, 923 14 (N.D. Cal. 2012); 5C Wright & Miller, Fed. Prac. & Proc. Civ. § 1382 (3d ed.) (collecting cases). 15 Pleadings by pro se plaintiffs like Mr. Lee “are liberally construed, particularly where civil 16 rights claims are involved.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 17 III. Discussion 18 The Court previously denied Defendants’ motion to dismiss several of Mr. Lee’s claims 19 but granted it as to others, dismissing some claims with leave to amend and some without. Mr. Lee 20 then filed the amended complaint Defendants now challenge. In the interest of clarity, the status of 21 each claim in Mr. Lee’s Fourth Amended Complaint is addressed in sequence below. 22 A. The State Law False Arrest Claims Against the City May Proceed. 23 Mr. Lee’s first cause of action is a state law false arrest claim against the City. The Court 24 previously denied Defendants’ motion to dismiss this claim because the pleadings raise a question 25 of fact as to whether the police officers had probable cause. This claim therefore remains. 26 Defendants move to strike allegations that Mr. Lee has added to this portion of the 27 complaint pertaining to the cell phone video Officer Roberson allegedly failed to preserve, which 1 these allegations could not possibly relate to any part of the subject matter of this case, nor have 2 they explained how any prejudice would result if the allegations remain. Rules 8 and 12 set a high 3 bar for the factual allegations a plaintiff must make in order to plausibly state a claim and avoid 4 dismissal. It is therefore not surprising that a complaint may sometimes include more allegations 5 than strictly necessary to state a claim. But overinclusion alone does not require that material be 6 stricken under Rule 12(f)—especially where, as here, a party is proceeding pro se. 7 Further, while one of the claims based on the cell phone video allegations has indeed been 8 dismissed, there are other active claims to which these allegations might still pertain. For example, 9 in paragraph 105 of the amended complaint as part of his malicious prosecution claim against 10 Officer Roberson, Mr. Lee alleges that Officer Roberson’s “dismissal of … contrary evidence” 11 and “intentional suppression of evidence” demonstrate that Officer Roberson acted with malice. 12 Motions to strike are drastic and disfavored. The burden is on the moving party to show 13 that the challenged material “clearly could have no possible bearing on the subject of the 14 litigation.” Holmes v. Elec. Document Processing, Inc., 966 F. Supp. 2d 925, 930 (N.D. Cal. 15 2013). “If there is any doubt whether the portion to be stricken might bear on an issue in the 16 litigation, the court should deny the motion.” Id. Defendants have not met this burden, and their 17 motion to strike paragraph 42 is therefore denied. 18 B. The Section 1983 Claims Are Dismissed Except for the Arrest Claim Against Officer Roberson. 19 20 Mr. Lee’s second cause of action includes Section 1983 claims against both the City and 21 Officer Roberson. The claims against the City are dismissed. The claim against Officer Roberson 22 for arrest without probable cause remains, but the other claims against him are also dismissed. 23 1. The Section 1983 Claims Against the City Are Dismissed. 24 In its previous order, the Court dismissed Mr. Lee’s Section 1983 claims against the City, 25 including the claim under Brady v. Maryland, 373 U.S. 83 (1963), with leave to amend. As the 26 Court pointed out, under Monell v. Department of Social Services, municipalities cannot be liable 27 under Section 1983 based on a respondeat superior theory but can be liable if an unwritten custom 1 those rights. See 436 U.S. 658, 691 (1978). After reviewing five alleged unwritten customs and an 2 alleged failure to train, the Court previously determined that Mr. Lee had not stated a Monell claim 3 on any of these grounds and dismissed these claims against the City with leave to amend. 4 In his amended complaint, Mr. Lee again alleges that the City and Police Department had a 5 “policy or custom … of assisting victims in depriving suspects without warrant and without 6 probable cause.” The Court had previously dismissed this allegation, explaining that Mr. Lee 7 “must plead additional facts,” not just “conclusory assertions,” showing that there was a 8 “‘persistent and widespread’ custom of executing arrests without probable cause.” The Court also 9 explained that because “warrantless arrests are constitutional under proper circumstances, a policy 10 or custom of such arrests cannot be the basis for a Monell claim.” Mr. Lee has now added three 11 case citations to this section of his amended complaint. But the existence of three cases against the 12 City, parallel as they may be, is not enough to plausibly allege a widespread custom of executing 13 arrests without probable cause. Indeed, these court decisions do not support Mr. Lee’s allegations. 14 The order Mr. Lee cites in Ferris granted the City’s motion to dismiss, including the plaintiff’s 15 false arrest and Monell claims under Section 1983. See Ferris v. City of San Jose, No. 11-CV- 16 01752-LHK (N.D. Cal. Nov. 16, 2011). In both Ruiz and Garcia, the parties settled their claims. 17 See Ruiz v. City of San Jose, No. 17-CV-06488-LHK (N.D. Cal. Nov. 12, 2018); Grijalva v. City 18 of San Jose, No. 18-CV-01853-EJD (N.D. Cal. Jul. 19, 2018). Mr. Lee has not added any other 19 substantial factual allegation to this cause of action. As a result, the complaint still fails to state a 20 Section 1983 claim against the City. The Section 1983 claims against the City are therefore 21 dismissed without further leave to amend. 22 2. The Section 1983 Arrest Claim Against Officer Roberson May Proceed. 23 In its previous order, the Court concluded that Mr. Lee had stated a Section 1983 claim 24 against Officer Roberson based on his alleged warrantless arrest without probable cause in 25 violation of the Fourth Amendment and therefore denied Defendants’ motion to dismiss that 26 claim. To the extent Defendants’ motion to dismiss seeks to dismiss this aspect of the second 27 cause of action asserted against Officer Roberson, that motion is denied and the claim remains. 3. The Other Section 1983 Claims Against Officer Roberson Are 1 Dismissed. 2 The Court previously dismissed all of the other Section 1983 claims against Officer 3 Roberson. The Court did not grant Mr. Lee leave to amend his claims based on evidentiary 4 misconduct or the class-of-one equal protection claim. These remain dismissed. The Court did 5 grant leave to amend with respect to some of Mr. Lee’s other claims based on other constitutional 6 violations. In his amended complaint, however, Mr. Lee has not added specific factual allegations 7 sufficient to state such claims. 8 The Court granted Mr. Lee leave to amend to plead an equal protection claim based on 9 intentional racial discrimination, and concluded that although allegations of other constitutional 10 violations—including witness tampering, false imprisonment, confessed coercion, biased 11 investigation, abuse of power, and abuse of process—were conclusory, Mr. Lee would be 12 permitted to amend those claims as well. Upon careful review of Mr. Lee’s amendments, however, 13 there are no new factual allegations sufficient to plausibly state any of these claims. To paragraph 14 26, for example, Mr. Lee has added an allegation that “[a]s I was already under the threat of force 15 contributed by officer Roberson’s behavior, officer Roberson in effect was compelling my false 16 confession in exchange for a release from a detainment.” As before, this assertion is conclusory. 17 To paragraph 66, Mr. Lee has added an allegation that “[a]nother police officer whose identify is 18 unknown to me unlawfully deprived of my constitutional rights through witness tampering.” But 19 this alleged misconduct does not support a claim against Officer Roberson, and Section 1983 does 20 not create respondeat superior liability against the City for this unknown officer’s actions. 21 Accordingly, except for the arrest claim discussed above, the Section 1983 claims against Officer 22 Roberson are dismissed without further leave to amend. 23 Finally, Defendants move to strike Mr. Lee’s factual allegations that Officer Roberson 24 engaged in evidentiary misconduct. Defendants are correct that the Court has dismissed some of 25 the legal claims that are based on these allegations. But Defendants have again not shown that 26 these allegations could not possibly relate to any part of the subject matter of this case, nor have 27 they suggested prejudice would result from leaving them in. The motion to strike paragraphs 29– 1 C. The Brady Claims Against the City and Officer Roberson Are Dismissed. 2 Mr. Lee’s third cause of action against both the City and Officer Roberson is for a Brady 3 violation. Previously, the Court dismissed the Brady claim against Officer Roberson without leave 4 to amend (finding it duplicative of the Section 1983 evidentiary claims against Officer Roberson 5 in the second cause of action) and dismissed the Brady claim against the City with leave to amend 6 because the prior complaint did not establish the necessary Monell elements. 7 In his opposition, Mr. Lee takes issue with the dismissal of his Brady claim against Officer 8 Roberson and requests reconsideration. As an initial matter, the Local Rules required Mr. Lee to 9 seek leave to file a motion for reconsideration rather than raising it in opposition to the present 10 motion to dismiss. Regardless, such a motion would be futile. The Court previously concluded that 11 Mr. Lee’s allegations that Officer Roberson discussed the cell phone video while his bodycam was 12 recording, and that the video was later acquired by the District Attorney, contradicted the 13 proposition that Officer Roberson disregarded or was deliberately indifferent to Mr. Lee’s rights or 14 the truth. Mr. Lee still alleges that Officer Roberson viewed the cell phone video and was recorded 15 on his bodycam discussing its contents. But Mr. Lee has now changed some of the other 16 allegations regarding the video. He now claims in paragraph 29 that the District Attorney “was 17 never aware of the existence of such cell videos.” And he also now alleges that Officer Roberson 18 “in ‘bad faith’ concealed or destroyed the video.” These new allegations, however, are 19 contradicted by allegations earlier in the amended complaint that the cell phone video “was finally 20 produced,” and that during the hearing the prosecutor said she had learned that the alleged victim 21 “still had the cell videos in his cell phone.” The complaint also states that the police report on this 22 incident mentioned the fact that the alleged victim recorded the events. Accordingly, the Court 23 finds no justification for reconsidering its previous conclusion. 24 Further, the amended complaint still does not state a Brady claim against the City because 25 Mr. Lee has not satisfied Monell. In particular, the complaint still does not allege that any 26 evidentiary failures were the result of a City policy or custom. Accordingly, the Brady claims 27 against both defendants are dismissed without further leave to amend. 1 still relate to the case and Defendants have not shown that they will be prejudiced if the allegations 2 remain. Accordingly, for the same reasons discussed above, the Court will not strike them. 3 D. The State Law Malicious Prosecution Claim Is Dismissed. 4 Mr. Lee’s fourth cause of action is a state law malicious prosecution claim against the City 5 and Officer Roberson. The Court previously dismissed this claim without leave to amend, and it 6 remains dismissed. As with the other claims, though, the factual allegations contained in 7 paragraphs 85–97 may still be potentially relevant to the Section 1983 malicious prosecution claim 8 or to others, and Defendants have not met their burden of showing the allegations could have no 9 possible bearing on the case. The Court therefore declines to strike these paragraphs. 10 E. The Section 1983 Malicious Prosecution Claim May Proceed Against Officer Roberson But Not Against the City. 11 12 Mr. Lee’s fifth cause of action is a newly added Section 1983 malicious prosecution claim 13 against the City and Officer Roberson, which the Court previously granted Mr. Lee leave to add. 14 The amended complaint states a claim against Officer Roberson but not against the City. 15 1. The Claim Against the City Is Dismissed. 16 As with the other Section 1983 claims, the City is not liable for constitutional rights 17 violations on a respondeat superior basis. To hold the City liable under Monell, Mr. Lee must first 18 show that his rights were violated as a result of an official policy or unwritten custom. See 19 Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021). Here, Mr. Lee makes no 20 allegation that the allegedly malicious prosecution was undertaken in accordance with any City 21 policy or custom. Instead, he asserts that Officer Roberson was acting “under the employment of 22 the City” and that “defendants were actively involved in causing me to be arrested and prosecuted 23 … without probable cause.” These assertions are insufficient to hold the City liable under Monell 24 because they do not allege any policy or custom that led to the malicious prosecution. This claim 25 against the City is therefore dismissed without leave to amend. 26 2. The Claim Against Officer Roberson May Proceed. 27 Defendants have not moved to dismiss the Section 1983 malicious prosecution claim 1 IV. Conclusion 2 For the reasons set forth above, the following claims remain and may proceed: 3 e False arrest claims against the City (First Cause of Action) 4 e Section 1983 arrest claim against Officer Roberson (Second) 5 e Section 1983 malicious prosecution claim against Officer Roberson (Fifth). 6 || All other claims are dismissed without leave to amend. Defendants’ motion to strike is denied. 7 The Court informs Mr. Lee that the Federal Pro Se Program at the San José Courthouse 8 || provides free information and limited-scope legal advice to pro se parties in federal civil cases. 9 The Program can help determine whether cases might be eligible for appointment of pro bono 10 || counsel and can provide referrals to other legal services. Appointments can be made by calling ll (408) 297-1480. More information is available online at cand.uscourts.gov/helpcenters]. 12
IT IS SO ORDERED. 14 Dated: November 8, 2023
Ange bm P. Casey Pitts 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28