1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY PAZMINO, No. 2:22-cv-00273-JAM-DB 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 14 CITY OF VACAVILLE, VACAVILLE POLICE DEPARTMENT, VACAVILLE 15 POLICE CHIEF IAN SCHMUTZLER, OFFICER COLE SPENCER, OFFICER 16 CHARLES BAILEY, OFFICER DANIEL BAXLEY, OFFICER 17 MATTHEW TAYLOR, OFFICER RALPH VALLIMONT, OFFICER JAMES 18 CRISTE, OFFICER SEAN KELLY, OFFICER JESSE OUTLY, SGT. 19 KATHLEEN CORDONA, AND DOES 1- 25, 20 Defendants. 21 22 Anthony Pazmino (“Plaintiff”) filed this lawsuit against the 23 City of Vacaville (“the City”), various Vacaville Police 24 Department (“VPD”) officers, and fictious persons (collectively 25 “Defendants”), alleging a host of civil rights violations 26 relating to a blood alcohol content sample taken from him while 27 he was in VPD custody. See Second Am. Compl. (“SAC”), ECF 28 No. 25. Before this Court is Defendants’ motion to dismiss 1 Plaintiff’s newly added claim for violation of the First 2 Amendment in the First Cause of Action and Plaintiff’s Monell 3 claim in the Second Cause of Action. See Second Mot. to Dismiss, 4 ECF No. 26. Plaintiff filed his opposition and Defendants 5 replied. See Opp’n, ECF No. 27; see also Reply, ECF No. 28. 6 For the reasons set forth below, the Court GRANTS Defendants’ 7 Motion to Dismiss with prejudice.1 8 9 I. BACKGROUND 10 In February 2020, VPD officers arrested Plaintiff for 11 allegedly driving under the influence (“DUI”) of alcohol and took 12 him to the local police station. See SAC ¶ 1. Once in custody, 13 the VPD obtained a warrant to obtain a blood alcohol content 14 sample (“sample”) from Plaintiff. Id. Plaintiff asked to see 15 the warrant, but his request was denied. Id. ¶ 24. Plaintiff 16 alleges that, without provocation, VPD officers collectively 17 restrained him to obtain the sample by handcuffing him with 18 excessive tightness, kicking and kneeing him, placing him in a 19 choke hold, binding him in a WRAP restraint, and ultimately 20 putting him in a carotid restraint hold. Id. ¶¶ 25-27. After 21 restraining him, VPD personnel allegedly repeatedly inserted a 22 needle into Plaintiff’s right arm to acquire the sample. Id. 23 ¶¶ 27, 28. 24 In August 2021, the Solano County Superior Court dismissed 25 Plaintiff’s DUI charges after granting Plaintiff’s motion to 26
27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for February 14, 2023. 1 suppress the sample because it found the VPD officers’ conduct 2 excessive under the Constitution. Id. ¶¶ 60-61. The court 3 particularly frowned upon the officers’ choke hold use, stating 4 such actions “shocked the conscience” and that “it is not 5 reasonable for law enforcement to choke somebody for three 6 minutes to gain their compliance.” Id. ¶ 58. Plaintiff also 7 alleges that after his DUI’s dismissal the Vacaville Police 8 Chief, Ian Schmurtzler (“Schmurtzler”), condoned the VPD 9 officers’ behavior despite the Superior Court’s ruling and VPD 10 policies prohibiting choke holds. Specifically, Plaintiff 11 contends Schmurtzler’s approval is exhibited by his “conscious 12 and affirmative choice to ignore” the officers’ behavior, which 13 Plaintiff argues “effectively reverse[d] or invlalidate[d]” the 14 VPD’s ban on choke holds. Id. ¶ 56. 15 Plaintiff then initiated this action and filed his First 16 Amended Complaint (“FAC”) based on two § 1983 claims alleging: 17 (1) constitutional violations under the Fourth and Fourteenth 18 Amendments against the VPD Officers; and (2) Monell liability 19 against the City, the VPD, Schmurtzler, and unknown persons. See 20 First Am. Compl. ¶¶ 57-66. Defendants filed a motion to dismiss 21 the second claim against the City, the VPD, and Schmurtzler. See 22 First Mot. to Dismiss, ECF No. 12. The Court granted the motion 23 and dismissed the VPD and Schmurtzler with prejudice, but gave 24 Plaintiff leave to file an amended Monell claim. See Order, ECF 25 No. 24. Plaintiff then filed his Second Amended Complaint 26 (“SAC”), renewing his Monell claim against the City. See SAC 27 ¶¶ 46-67. Moreover, the Plaintiff amended his First Cause of 28 Action, without the permission of the Court, to include new 1 allegations under the First Amendment. See Id. ¶ 47. Defendants 2 then filed this motion to dismiss, asking the court to dismiss 3 the new First Amendment claim and the Second Cause of Action in 4 its entirety. See Second Mot. to Dismiss at 2. Plaintiff 5 opposed and Defendants replied. See generally Opp’n; Reply. 6 7 II. OPINION 8 A. Legal Standard 9 When weighing a motion to dismiss, courts “accept factual 10 allegations in the complaint as true and construe the pleadings 11 in the light most favorable to the nonmoving party.” Manzarek v. 12 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 13 2008). However, “a complaint must contain sufficient factual 14 matter, accepted as true, to ‘state a claim to relief that is 15 plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 16 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 17 1974 (2007)). Facial plausibility exists when “the plaintiff 18 pleads factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. However, “a formulaic recitation of a 21 cause of action's elements will not do.” Twombly, 127 S. Ct. at 22 1965. Such statements are “legal conclusion[s] couched as 23 factual allegation[s]” that must be dismissed. Papasan v. 24 Allain, 106 S. Ct. 2932, 2944 (1986). 25 B. Analysis 26 1. Plaintiff’s First Amendment Claim 27 Defendants argue Plaintiff’s First Amendment claim is 28 factually unsupported and therefore “improper and not 1 cognizable.” Second Mot. to Dismiss at 5. In response, 2 Plaintiff states this new claim “is premised on the allegations 3 that [D]efendants’ unreasonable and excessive use of force . . . 4 was in retaliation for his request to see the warrant officers 5 []obtained for a blood draw.” Opp’n at 9. 6 To successfully plead such a First Amendment violation 7 claim, a plaintiff must allege: (1) he engaged in 8 constitutionally protected activity; (2) the defendant’s actions 9 would chill a person or ordinary firmness from engaging in the 10 protected activity; and (3) the protected activity acted as a 11 substantial or motivating factor in the defendant’s conduct. See 12 Capp v. Cnty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019). 13 The last element requires a plaintiff to plead a defendant’s 14 retaliatory animus was the “but-for cause, meaning that the 15 adverse action against the plaintiff would not have been taken 16 absent the retaliatory motive.” Id. (quoting O'Brien v. Welty, 17 818 F.3d 920, 932 (9th Cir. 2016)); see also Capp, 940 F.3d at 18 1058 (finding Plaintiff properly plead but-for causation under 19 the First Amendment where plaintiff alleged defendants’ 20 retaliatory conduct was “purely motivated by [defendant’s] desire 21 to retaliate against” plaintiff). Here, the SAC lacks sufficient 22 factual allegations to substantiate the third prong. Simply put, 23 Plaintiff failed to provide any allegations suggesting the VPD 24 officers harbored retaliatory animus toward him or a nexus 25 between such animus and their actions. Plaintiff, thus, has 26 failed to state a plausible First Amendment Claim. This claim 27 within the First Cause of Action is dismissed with prejudice as 28 the Court finds that further amendment would be futile. 1 See Gompper v. VISX, Inc.,
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY PAZMINO, No. 2:22-cv-00273-JAM-DB 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 14 CITY OF VACAVILLE, VACAVILLE POLICE DEPARTMENT, VACAVILLE 15 POLICE CHIEF IAN SCHMUTZLER, OFFICER COLE SPENCER, OFFICER 16 CHARLES BAILEY, OFFICER DANIEL BAXLEY, OFFICER 17 MATTHEW TAYLOR, OFFICER RALPH VALLIMONT, OFFICER JAMES 18 CRISTE, OFFICER SEAN KELLY, OFFICER JESSE OUTLY, SGT. 19 KATHLEEN CORDONA, AND DOES 1- 25, 20 Defendants. 21 22 Anthony Pazmino (“Plaintiff”) filed this lawsuit against the 23 City of Vacaville (“the City”), various Vacaville Police 24 Department (“VPD”) officers, and fictious persons (collectively 25 “Defendants”), alleging a host of civil rights violations 26 relating to a blood alcohol content sample taken from him while 27 he was in VPD custody. See Second Am. Compl. (“SAC”), ECF 28 No. 25. Before this Court is Defendants’ motion to dismiss 1 Plaintiff’s newly added claim for violation of the First 2 Amendment in the First Cause of Action and Plaintiff’s Monell 3 claim in the Second Cause of Action. See Second Mot. to Dismiss, 4 ECF No. 26. Plaintiff filed his opposition and Defendants 5 replied. See Opp’n, ECF No. 27; see also Reply, ECF No. 28. 6 For the reasons set forth below, the Court GRANTS Defendants’ 7 Motion to Dismiss with prejudice.1 8 9 I. BACKGROUND 10 In February 2020, VPD officers arrested Plaintiff for 11 allegedly driving under the influence (“DUI”) of alcohol and took 12 him to the local police station. See SAC ¶ 1. Once in custody, 13 the VPD obtained a warrant to obtain a blood alcohol content 14 sample (“sample”) from Plaintiff. Id. Plaintiff asked to see 15 the warrant, but his request was denied. Id. ¶ 24. Plaintiff 16 alleges that, without provocation, VPD officers collectively 17 restrained him to obtain the sample by handcuffing him with 18 excessive tightness, kicking and kneeing him, placing him in a 19 choke hold, binding him in a WRAP restraint, and ultimately 20 putting him in a carotid restraint hold. Id. ¶¶ 25-27. After 21 restraining him, VPD personnel allegedly repeatedly inserted a 22 needle into Plaintiff’s right arm to acquire the sample. Id. 23 ¶¶ 27, 28. 24 In August 2021, the Solano County Superior Court dismissed 25 Plaintiff’s DUI charges after granting Plaintiff’s motion to 26
27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for February 14, 2023. 1 suppress the sample because it found the VPD officers’ conduct 2 excessive under the Constitution. Id. ¶¶ 60-61. The court 3 particularly frowned upon the officers’ choke hold use, stating 4 such actions “shocked the conscience” and that “it is not 5 reasonable for law enforcement to choke somebody for three 6 minutes to gain their compliance.” Id. ¶ 58. Plaintiff also 7 alleges that after his DUI’s dismissal the Vacaville Police 8 Chief, Ian Schmurtzler (“Schmurtzler”), condoned the VPD 9 officers’ behavior despite the Superior Court’s ruling and VPD 10 policies prohibiting choke holds. Specifically, Plaintiff 11 contends Schmurtzler’s approval is exhibited by his “conscious 12 and affirmative choice to ignore” the officers’ behavior, which 13 Plaintiff argues “effectively reverse[d] or invlalidate[d]” the 14 VPD’s ban on choke holds. Id. ¶ 56. 15 Plaintiff then initiated this action and filed his First 16 Amended Complaint (“FAC”) based on two § 1983 claims alleging: 17 (1) constitutional violations under the Fourth and Fourteenth 18 Amendments against the VPD Officers; and (2) Monell liability 19 against the City, the VPD, Schmurtzler, and unknown persons. See 20 First Am. Compl. ¶¶ 57-66. Defendants filed a motion to dismiss 21 the second claim against the City, the VPD, and Schmurtzler. See 22 First Mot. to Dismiss, ECF No. 12. The Court granted the motion 23 and dismissed the VPD and Schmurtzler with prejudice, but gave 24 Plaintiff leave to file an amended Monell claim. See Order, ECF 25 No. 24. Plaintiff then filed his Second Amended Complaint 26 (“SAC”), renewing his Monell claim against the City. See SAC 27 ¶¶ 46-67. Moreover, the Plaintiff amended his First Cause of 28 Action, without the permission of the Court, to include new 1 allegations under the First Amendment. See Id. ¶ 47. Defendants 2 then filed this motion to dismiss, asking the court to dismiss 3 the new First Amendment claim and the Second Cause of Action in 4 its entirety. See Second Mot. to Dismiss at 2. Plaintiff 5 opposed and Defendants replied. See generally Opp’n; Reply. 6 7 II. OPINION 8 A. Legal Standard 9 When weighing a motion to dismiss, courts “accept factual 10 allegations in the complaint as true and construe the pleadings 11 in the light most favorable to the nonmoving party.” Manzarek v. 12 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 13 2008). However, “a complaint must contain sufficient factual 14 matter, accepted as true, to ‘state a claim to relief that is 15 plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 16 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 17 1974 (2007)). Facial plausibility exists when “the plaintiff 18 pleads factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. However, “a formulaic recitation of a 21 cause of action's elements will not do.” Twombly, 127 S. Ct. at 22 1965. Such statements are “legal conclusion[s] couched as 23 factual allegation[s]” that must be dismissed. Papasan v. 24 Allain, 106 S. Ct. 2932, 2944 (1986). 25 B. Analysis 26 1. Plaintiff’s First Amendment Claim 27 Defendants argue Plaintiff’s First Amendment claim is 28 factually unsupported and therefore “improper and not 1 cognizable.” Second Mot. to Dismiss at 5. In response, 2 Plaintiff states this new claim “is premised on the allegations 3 that [D]efendants’ unreasonable and excessive use of force . . . 4 was in retaliation for his request to see the warrant officers 5 []obtained for a blood draw.” Opp’n at 9. 6 To successfully plead such a First Amendment violation 7 claim, a plaintiff must allege: (1) he engaged in 8 constitutionally protected activity; (2) the defendant’s actions 9 would chill a person or ordinary firmness from engaging in the 10 protected activity; and (3) the protected activity acted as a 11 substantial or motivating factor in the defendant’s conduct. See 12 Capp v. Cnty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019). 13 The last element requires a plaintiff to plead a defendant’s 14 retaliatory animus was the “but-for cause, meaning that the 15 adverse action against the plaintiff would not have been taken 16 absent the retaliatory motive.” Id. (quoting O'Brien v. Welty, 17 818 F.3d 920, 932 (9th Cir. 2016)); see also Capp, 940 F.3d at 18 1058 (finding Plaintiff properly plead but-for causation under 19 the First Amendment where plaintiff alleged defendants’ 20 retaliatory conduct was “purely motivated by [defendant’s] desire 21 to retaliate against” plaintiff). Here, the SAC lacks sufficient 22 factual allegations to substantiate the third prong. Simply put, 23 Plaintiff failed to provide any allegations suggesting the VPD 24 officers harbored retaliatory animus toward him or a nexus 25 between such animus and their actions. Plaintiff, thus, has 26 failed to state a plausible First Amendment Claim. This claim 27 within the First Cause of Action is dismissed with prejudice as 28 the Court finds that further amendment would be futile. 1 See Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002) 2 (finding leave to amend need not be granted when amendment would 3 be futile). 4 2. Plaintiff’s Monell Claim 5 Defendants next contend the SAC fails to cure the defects 6 prompting the Court’s previous dismissal of Plaintiff’s Monell 7 ratification claim. See Second Mot. to Dismiss at 7. Although 8 Defendants advance various theories supporting this contention, 9 the Court finds their argument that Plaintiff failed to properly 10 plead Schmurtzler is a final policymaker under California law to 11 be the most persuasive. See Id. 12 To establish a Monell ratification claim, plaintiff must 13 allege “an official with final policymaking authority ratified a 14 subordinate’s unconstitutional decision or action and the basis 15 for it.” Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 16 1992). Importantly, and as the Court noted in its previous 17 order, state law governs who is a final policymaker under Monell. 18 See City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988); 19 see also Order at 7. As a result, the Court must look to a 20 state’s constitution, statutes, and case law to evaluate “whether 21 governmental officials are final policymakers for the local 22 government in a particular area or issue.” Brewster v. Shasta 23 Cnty., 275 F.3d 803, 806 (9th Cir. 2001) (quoting McMillian v. 24 Monroe County, 520 U.S. 781, 785 (1997). 25 The success of Plaintiff’s ratification claim therefore 26 requires him to pinpoint a California legal authority recognizing 27 Schmurtzler as the final policymaker regarding the VPD’s 28 chokehold policies. Plaintiff, however, has not done so. eee ee eee IIE OE OS
1 Instead, Plaintiff’s SAC summarily identifies Schmurtzler as a 2 final policymaker—a legal conclusion Twombly and Iqbal prohibit. 3 | Moreover, the Ninth Circuit cases Plaintiff relies on to support 4] his argument that police chiefs are final policymakers under 5 California law— Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 6 1999) and Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)-— 7 fail to stand for that contention. The former determined whether 8 a Hawaii State Prosecutor acted as final policymaker; the latter 9 concerned whether a City Council paying punitive damages 10 constituted ratification. As a result, Plaintiff’s SAC fails to 11 include the necessary factual allegations demonstrating that 12 Schmutzler is a final policymaker under state law. Plaintiff’s 13 Second Cause of Action under Monell is dismissed with prejudice 14 as the Court finds that further amendment would be futile. 15 See Gompper, 298 F.3d at 898. 16 17 IIl. ORDER 18 For the reasons set forth above, the Court GRANTS 19 | Defendants’ Motion to Dismiss and DISMISSES Plaintiff’s First 20 Amendment claim within the First Cause of Action and Plaintiff's 21 Second Cause of Action under Monell WITH PREJUDICE. 22 IT IS SO ORDERED. 23 | Dated: April 14, 2023 24 cp, JOHN A. MENDEZ 26 SENIOR UNITED*STATES DISTRICT JUDGE 27 28