McMillan v. County of Shasta

Opinion

JAMES I. MCMILLAN, No. 2:20-cv-00564-JAM-JDP Plaintiff, v. ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS COUNTY OF SHASTA, a public entity, et. al., Defendants. James I. McMillan (“Plaintiff”) brings this Section 1983 action pro per against the County of Shasta, the City of Anderson, the Anderson Fire Protection District, Fire Chief Steve Lowe, Anderson Police Officer Kameron Lee, Shasta County Sheriff- Coroner Thomas Bosenko, County Jail Captain Dave Kent, California Forensic Medical Group Inc., and Jail Nurses Linda Smith and Amanda Ream (“Defendants”). See Third Amended Complaint (“TAC”) at 2-3, ECF No. 43. Before the Court are two motions to dismiss.1 Mot. to Dismiss by the Anderson Fire Protection District and Fire Chief

1 These motions were determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearings were scheduled for August 10, 2021. Steve Lowe (“Fire Defendants”) (hereinafter the “Fire Mot.”), ECF No. 45; Mot. to Dismiss by the City of Anderson and Anderson Police Officer Kameron Lee (“City Defendants”) (hereinafter the “City Mot.”), ECF No. 46. Plaintiff opposed both motions. Opp’n to Fire Mot. (“Fire Opp’n”), ECF No. 50; Opp’n to City Mot. (“City Opp’n”), ECF No. 51. Defendants replied. Reply by City Defendants (“City Reply”), ECF No. 52; Reply by Fire Defendants (“Fire Reply”), ECF No. 53. After consideration of the parties’ briefing and relevant legal authority, the Court GRANTS both motions to dismiss. The parties are familiar with the factual background of this case—it is set forth extensively in the operative complaint, the parties’ briefings, and the Court’s prior order. See Order Granting Mots. to Dismiss (“Prior Order”) at 1-4, ECF No. 38. The Court does not restate those allegations here. On February 2, 2021, the Court granted Fire Defendants’ and City Defendants’ motions to dismiss. See generally Prior Order. On May 1, 2021, Plaintiff filed a 51-page third amended complaint with sixteen causes of action. See TAC. Fire Defendants and City Defendants again move to dismiss all claims against them. See Fire Mot.; City Mot. A. Request for Judicial Notice Plaintiff requests the Court take judicial notice of three exhibits, namely documents from the court files in his Shasta County Superior Court criminal case. See Pl.’s Req. for Jud. Notice (“RFJN”) at 3, ECF No. 50-1. All of the above exhibits are matters of public record and therefore proper subjects of judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Accordingly, the Court GRANTS Plaintiff’s request for judicial notice. However, the Court takes judicial notice only of the existence of these documents and declines to take judicial notice of their substance, including any disputed or irrelevant facts within them. Lee, 250 F.3d at 690. B. Legal Standard A Rule 12(b)(6) motion challenges the complaint as not alleging sufficient facts to state a claim for relief. See Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss [under 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). While “detailed factual allegations” are unnecessary, the complaint must allege more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader’s favor. Lazy Y Ranch LTD. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). /// C. Analysis 1. Fire Defendants’ Motion Fire Defendants move to dismiss all claims against Chief Lowe and the Anderson Fire Protection District, contending that none of the factual allegations involving Lowe or the Anderson firefighters provide a basis for liability. Fire Mot. at 5-14. The Court agrees. The only factual, non-conclusory allegations as to Lowe and the Anderson firefighters are as follows: On the evening of March 7, 2019, firefighters arrived at Plaintiff’s home after receiving a call about a fire at the property. TAC ¶ 7. The firefighters “demanded” to inspect the area surrounding the house, and Plaintiff reluctantly agreed. Id. ¶¶ 8-9. Shortly after, Chief Lowe arrived and asked Plaintiff to provide his name, age, and driver’s license. Id. ¶¶ 11-12. Plaintiff refused to provide his driver’s license, stating he was not required to because he was not operating a vehicle. Id. ¶ 12. Chief Lowe then prepared a citation for violations of Health & Safety Code Section 42400.2(c) and Penal Code Section 148(A)(1). Id. ¶ 15. Plaintiff refused to sign the Notice to Appear. Id. ¶ 16. Following Plaintiff’s refusal to sign the Notice to Appear, Plaintiff was arrested. Id. After Plaintiff was placed in the police cruiser by Officer Lee, Chief Lowe walked over and asked in a “tormenting tone” if Plaintiff was willing to sign the citation. Id. ¶¶ 20,32. Plaintiff also claims Fire Chief Lowe fabricated evidence in his state court criminal case. Id. ¶¶ 73-77. /// Taking these allegations as true and drawing all inferences in Plaintiff’s favor, these allegations do not amount to sufficient “factual content that allows the [C]ourt to draw the reasonable inference that defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Simply put, Plaintiff still has not pled any legally actionable conduct by the Fire Defendants. Beginning with Plaintiff’s first claim for relief captioned “Fourth Amendment- Seizure, Cruel and Unusual Punishment, Deliberate Indifference”2, see TAC at 21-24, the allegations above do not support this excessive force claim against Chief Lowe. There are no factual allegations that Chief Lowe actively participated in arresting, handcuffing, or searching Plaintiff’s body. See TAC. Indeed, there is no allegation that Chief Lowe touched Plaintiff whatsoever. Id. Rather, Plaintiff seeks to hold Chief Lowe liable as an “integral participant” under Boyd v. Benton County, 374 F.3d 773 (9th Cir.2004). Id. ¶ 89. But no facts support Plaintiff’s conclusory allegation that Chief Lowe was an “integral participant.” See Fire Mot. at 8-10; Fire Reply at 5-6. Rather, the allegations indicate Chief Lowe was a “mere bystander,” for which the Boyd Court clearly instructed liability cannot attach. Boyd, 374 F.3d at 780 (explaining that 2 In so captioning, Plaintiff appears to ignore the Court’s prior holding that: “Plaintiff does not have a cognizable claim for cruel and unusual punishment or deliberate indifference under either the Eighth or Fourteenth Amendments because Plaintiff was neither a convicted prisoner nor a pre-trial detainee during his interactions with Officer Kameron Lee. Accordingly, the Court’s analysis. . . is limited to excessive force claims under the Fourth Amendment.” Prior Order at 13 (internal citations omitted). Thus, notwithstanding Plaintiff’s caption, the Court limits its analysis to the Fourth Amendment claims. liability cannot attach to “’a mere bystander’ who had no role in the unlawful conduct’” and requiring “‘integral participation’ by each officer as a predicate to liability.”) Because Plaintiff has not plausibly alleged that Chief Lowe was an integral participant, his Fourth Amendment claim is dismissed. Further, the Court finds it appropriate to dismiss this claim with prejudice. See Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002) (finding leave to amend need not be granted when amendment would be futile). As Plaintiff has already amended his complaint three times, any further amendment would be futile. See Zucco Partners, LLC v. Digimarc Corp, 552 F.3d 981, 1007 (9th Cir. 2009) (noting that where the plaintiff has previously been granted leave to amend and subsequently failed to cure deficiencies the district court’s discretion to deny leave to amend is particularly broad). Turning next to Plaintiff’s fifth claim for relief under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) (hereinafter “Monell”) against the Anderson Fire Protection District, see TAC at 28-37, the limited factual allegations set forth above also do not support this claim. To properly state a Monell claim, allegations in a complaint “may not simply recite the elements of a cause of action but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (internal citations omitted). Here, as in the SAC, Plaintiff’s allegations do not support his Monell claims against the Anderson Fire Protection District. See Prior Order at 15-16 (explaining why Plaintiff’s allegations did not suffice to state a Monell claim). Any further amendment would be futile. Accordingly, his Monell claims against the Anderson Fire Protection District are dismissed with prejudice. See Zucco Partners, 552 F.3d at 1007. Finally, the limited factual allegations involving the Fire Defendants do not support any of Plaintiff’s state law claims against Chief Lowe or the Anderson Fire Protection District. Plaintiff’s seventh claim for relief is for false arrest by Chief Lowe. TAC ¶¶ 158-166. But no facts support Plaintiff’s conclusory allegation that Chief Lowe arrested him. Id. ¶ 164. For instance, Plaintiff does not allege Chief Lowe participated in handcuffing him, escorting him to the police cruiser, getting him into the police cruiser, or transporting him in the police cruiser. Rather, Plaintiff alleges Officer Lee took those specific actions. Id. ¶¶ 17-36. Accordingly, Plaintiff’s seventh claim is dismissed. Likewise, Plaintiff’s eighth claim for enhanced elder abuse, id. ¶¶ 167-175, his tenth claim for violation of the Bane Act, id. ¶¶ 182-199, his eleventh claim for negligence per se, id. ¶¶ 200-208, and his twelfth claim for negligence, id. ¶¶ 209-212, are dismissed because they are factually unsupported.3 See TAC; see also Fire Mot. at 12-13. As any further amendment would be futile, all of Plaintiff’s state law claims are dismissed with prejudice. See Zucco Partners, 552 3 Because these claims are factually unsupported and dismissed on that ground, the Court need not address the additional legal barriers to these claims raised by the Fire Defendants. See Fire Mot. at 12-13. F.3d at 1007. This analysis is not altered by Plaintiff’s presentment of new evidence – evidence not alleged in the TAC, but rather presented in Plaintiff’s request for judicial notice filed with his opposition brief – that his criminal conviction has been vacated. See Ex. B to Pl.’s RFJN. Even if Plaintiff were correct that this update in his state criminal case means the Heck bar no longer applies, see Prior Order at 8-12, the factual deficiencies with the TAC remain and warrant dismissal. Iqbal, 556 U.S. at 678. In sum, Plaintiff has amended his complaint multiple times yet still has not pled any legally actionable conduct by the Fire Defendants. Accordingly, Fire Defendants’ motion to dismiss is GRANTED and these Defendants are dismissed from the case with prejudice. 2. City Defendants’ Motion City Defendants move to dismiss all claims against Officer Lee and the City of Anderson. City Mot. at 5-13. As a threshold matter, Plaintiff’s fifteenth claim for assault and sixteenth claim for battery by a peace officer are dismissed because the Court did not grant Plaintiffs leave to add these claims. See City Mot. at 12; see also Jameson Beach Prop. Owners Ass’n v. U.S., No. 2:13-cv-01025-MCE-AC, 2014 WL 4925253, at *3-4 (E.D. Cal. Sept. 29, 2014) (“whether a district court will accept new claims and/or parties in an amended complaint after a motion to dismiss will depend on whether the plaintiff was granted leave to amend with or without limitation . . . when the language of an order clearly states that a plaintiff may only amend to address certain deficiencies identified in the order, courts have held that a plaintiff is barred from adding new claims or parties.”) Here, the Court’s prior order did not grant Plaintiff leave to add new claims. See Prior Order. Nor did Plaintiff seek leave to do so. Plaintiff is therefore barred from adding these new claims. See Jameson Beach, 2014 WL 4925253 at *4. Turning to Plaintiff’s first claim for “Fourth Amendment – Seizure, Cruel and Unusual Punishment, Deliberate Indifference”4, Plaintiff added only two new factual allegations: (1) that Officer Lee “did not upright [Plaintiff] before driving,” and (2) that Officer Lee “did not place a seatbelt on [Plaintiff] before driving.” TAC ¶ 33. These new allegations still do not state a valid excessive force claim. The Court previously explained that Plaintiff’s allegations “indicate only a reasonable use of force, the kind of force to be expected during an arrest” and thus did not plausibly state a claim that Officer Lee’s use of force was unreasonable. Prior Order at 13-14. Plaintiff’s two additional allegations do not alter the Court’s prior analysis because the failure to “upright” Plaintiff and failure to “seatbelt” him are, like his previous allegations, de minimis. Indeed, as City Defendants emphasize, these two allegations do not even involve physical contact. City Mot. at 6-7. Nor does Plaintiff cite to any authority supporting the idea that failure to seatbelt or to upright an arrestee plausibly states an excessive force claim.

4 As explained in footnote 2, Plaintiff’s caption ignores the Court’s prior holding that he does not have cognizable claims for cruel and unusual punishment or deliberate indifference under either the Eighth or Fourteenth Amendments. Prior Order at 13. Accordingly, the Court analyzes only his Fourth Amendment claims. See City Opp’n. Rather, he cites only to Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001) to support his contention that “when there is no need for force, any force used is constitutionally unreasonable.” See City Opp’n at 5. Specifically, Plaintiff argues that under Fontana there was no need for Officer Lee to use any force because he is “an elderly man who did not resist arrest on a non-violent, trivial offense.” Id. at 7. But Fontana is distinguishable. The Fontana plaintiff alleged she was arrested on suspicion of drunk driving, placed in the backseat of a patrol vehicle, and then “wrongfully and inappropriate touched and sexually assaulted” by an officer who sat in the back seat of the patrol car with her. Fontana, 262 F.3d at 875. The Ninth Circuit reversed the district court’s dismissal of Fontana’s Fourth Amendment claim, holding, “[t]here is no situation that would justify any amount of purposeful sexual verbal and physical predation against a handcuffed arrestee. No risk of flight nor threat to officer safety exists to justify such an abuse of the one-sided power arrangement that arises from a custodial arrest such as this one.” Id. at 881. Plaintiff’s allegations here come nowhere close to those in Fontana, thus Fontana cannot save his Fourth Amendment claims. For these reasons, the Court again finds Plaintiff’s allegations indicate the force used by Officer Lee was de minimis and thus cannot form the basis for a constitutional claim. See Graham v. Connor, 490 U.S. 386, 396 (1989) (“Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”); see also Parker v. City of Los Angeles et al., No. 2:15-CV-04670-SVW-JEM, 2016 WL 9153765, at *7 (C.D. Cal. June 22, 2016) (“a de minimis use of force is insufficient to support a claim of excessive force”). Plaintiff’s first claim against Officer Lee is dismissed with prejudice as further amendment would be futile. See Zucco Partners, 552 F.3d at 1007. Because the claim is dismissed on these grounds, the Court does not reach City Defendants’ additional arguments regarding qualified immunity. See City Mot. at 7-8; City Reply at 2-3. Next, City Defendants argue Plaintiff’s allegations as to his fourth claim under Monell are entirely conclusory and fail to state a claim. See City Mot. at 8-9; City Reply at 3-4. The Court agrees. The Court previously found Plaintiff’s allegations to be “entirely conclusory” and insufficient. Prior Order at 15- 16. In the TAC, Plaintiff alleged three additional customs, policies, or practices of the City: (1)“[A]llowing police officers known to be violent remain on the Anderson police force,”; (2)“[A]llowing APD officers to participate in arrests based upon false statements and lies,”; and (3)“not providing appropriate treatment for the elderly during investigations and/or arrests.” TAC ¶ 120(c)-(e). However, to support these allegations, Plaintiff provides only his own experience and a citation to the first amended complaint in Knighten v. City of Anderson, et al., 2:15-cv-01751-TLN-CMK, ECF No. 21(E.D. Cal. April 29, 2016), which involved different allegations of excessive force by a different Anderson police officer . See TAC at 28. From this lone citation, Plaintiff asks the Court to infer the City maintains a policy of retaining “violent” police officers. But the Court does not find Plaintiff has alleged more than “merely random, unconnected acts of misconduct.” Estate of Osuna v. Cty. Of Stanislaus, 392 F.Supp.3d 1162, 1174 (E.D. Cal. 2019). The law requires that an unwritten policy or custom must be so “persistent and widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691; see also Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.”). As City Defendants argue, “Plaintiff’s citation to a single, factually dissimilar case from 2016 is thus insufficient to state a Monell claim.” City Mot. at 9. Plaintiff counters that he has provided “multiple specific policies and/or customs” supporting a Monell claim and that he can “further define and expand this list” of alleged customs and policies during discovery. City Opp’n at 8-9. But this argument overlooks the well-settled rule that “facts are still required at the pleading stage.” City Reply at 4 (citing to Via v. City of Fairfield, 833 F.Supp.2d 1189, 1196 (E.D. Cal. June 13, 2011) (“Although plaintiff may benefit from discovery, the Supreme Court has made it clear that threadbare allegations are insufficient to ‘unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.’”). In sum, Plaintiff has failed to support his Monell claims against the City with sufficient facts. His three new allegations in the TAC are inadequate to salvage these claims. Accordingly, these claims are dismissed with prejudice. See Zucco Partners, 552 F.3d at 1007. Finally, City Defendants argue Plaintiff’s remaining state law claims should be dismissed. See City Mot. at 9-13; City Reply at 4. As to his eighth claim for enhanced elder abuse, Plaintiff did not plead any action by Officer Lee from which the Court can plausibly infer physical abuse that is “reckless, oppressive, fraudulent, or malicious” as required by Section 1567 of the California Welfare and Institutions Code. City Mot. at 9-11. Rather as explained above and in the Court’s prior order, see Prior Order at 14, the allegations indicate Officer Lee used a de minimis amount of force, the kind of force to be expected during an arrest. See Graham, 490 U.S. at 396. City Defendants’ cited authority, Cochrum v. Costa Victoria Healthcare, LLC, 25 Cal.App.5th 1034, 1046 (2018), illustrates how Plaintiff’s allegations fall short here. City Mot. at 10. In Cochrum, the court set forth examples of “conduct sufficiently egregious” to state an enhanced elder abuse claim, including a case in which “a nursing facility failed to provide an elderly man suffering from Parkinson’s disease with sufficient food and water and necessary medication . . . left him unattended and unassisted for long periods of time . . . left him in his own excrement so that ulcers exposing muscle and bone became infected . . . [and] misrepresented and failed to inform his children of his true condition.” 25 Cal.App.5th at 1046. Those facts are oceans apart from what Plaintiff has alleged here. Accordingly, Plaintiff’s eighth claim is dismissed. —— mm EE INE III IQ IIE IRIE IIIS INO INO IIE IOI IIE OS INGE IEE

As to his tenth claim for violation of the Bane Act, Plaintiff fails to plausibly plead any underlying constitutional violation. See M.H. v. Cnty. of Alameda, No. 11-CV-02868 JST, 90 F.Supp.3d 889, 896 (N.D. Cal. Apr. 18, 2013) (explaining that an underlying constitutional violation is required to state a Bane Act claim). Lastly, as to his eleventh claim for negligence per se and his twelfth claim for negligence, Plaintiff’s allegations simply do not provide a sufficient factual basis for these claims. See City Mot. at 11-12; City Reply at 4. Further as to the eleventh claim, Plaintiff did not plead a specific statute establishing the duty or standard of care. See City Mot. at □□□ 12 (citing to Elsner v. Uveges, 34 Cal. 4th 915, 928 (2004)). In sum, despite having had four opportunities to plead factually supported claims against City Defendants, Plaintiff has failed to do so. Further amendment would be futile. Accordingly, City Defendants’ motion to dismiss is GRANTED and these Defendants are dismissed from the case with prejudice. Til. ORDER For the reasons set forth above, the Court GRANTS WITH PREJUDICE Defendants’ Motions to Dismiss. Dated: October 25, 2021 kA Geren aaa pebrsacr 00k 14