1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 GERALD PITTS, No. 2:20-cv-01243 WBS JDP 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION TO DISMISS 15 CALIFORNIA HIGHWAY PATROL AND PLAINTIFF’S MOTION FOR OFFICERS D. BAUMGARTNER, LEAVE TO AMEND 16 HARDMAN, SKINNER, LANGFORD, DOES 1-25, 17 Defendants. 18
19 ----oo0oo---- 20 Plaintiff filed this action against four California 21 Highway Patrol officers pursuant to 28 U.S.C. § 1983 alleging: 22 (1) excessive force and failure to intervene in violation of the 23 Fourth Amendment, (2) deliberate fabrication of evidence in 24 violation of the Fourteenth Amendment, and (3) malicious 25 prosecution in violation of the Fourth Amendment. (Docket No. 26 1.) Defendants now move to dismiss the complaint pursuant to 27 Federal Rule of Civil Procedure 12(b)(5) for insufficient service 28 1 of process, or alternatively, defendants move to dismiss the 2 complaint’s second and third claims pursuant to Federal Rule of 3 Civil Procedure 12(b)(6). (Docket No. 9.) After defendants 4 moved to dismiss, plaintiff moved for leave to amend his 5 complaint to correct the errors noted by defendants’ motion to 6 dismiss, dismiss the malicious prosecution claim, and allege a 7 new claim of retaliation. (Docket No. 13.) 8 I. Factual Background 9 Plaintiff alleges that on July 1, 2018, he was leaving 10 a bar in Vallejo, California to drive home when he noticed that 11 California Highway Patrol (“CHP”) officers were parked behind him 12 and then began to follow him. (Compl. ¶¶ 9-10.) After some time 13 driving, the CHP officers turned on their lights and plaintiff 14 turned onto the street where he lived and parked in his driveway. 15 (Id. ¶¶ 12-13.) 16 Defendant Baumgartner approached plaintiff’s car and 17 they spoke for approximately 10 minutes. (Id. ¶ 14.) Plaintiff 18 alleges that Baumgartner’s attitude escalated as other CHP 19 officers arrived and that Baumgartner began to ask plaintiff 20 incriminating questions about drinking and driving. (Id. ¶ 15.) 21 Plaintiff informed the defendants that they could speak to his 22 attorney and offered his attorney’s phone number. (Id. ¶ 16.) 23 Defendants then told plaintiff he was under arrest and 24 took him out of his car, threw him against it, and put him in a 25 wristlock. (Id. ¶¶ 17-18.) Plaintiff’ wife came out to the 26 driveway and plaintiff asked defendants if he could give her his 27 attorney’s business card. (Id. ¶ 19.) Defendants then allegedly 28 threw plaintiff onto the ground and smashed his head repeatedly 1 on the concrete. (Id. ¶ 20.) One of the defendants forced 2 plaintiff’s wife back into the home. (Id.) 3 Plaintiff alleges he was lying on his stomach and 4 handcuffed when defendant Langford yelled, “He’s going for my 5 gun, he’s going for my gun.” (Id. ¶ 21.) Plaintiff alleges he 6 was in great fear of his life and asked defendants, “Is that how 7 you do it, is that how you kill us?” (Id. ¶ 22.) To which 8 Langford replied, “That’s how we do it.” (Id.) Once they 9 arrived back at the police station, plaintiff alleges defendants 10 joked that they should have shot or tasered him. (Id. ¶ 24.) 11 Plaintiff was incarcerated in Solano County jail without medical 12 attention. (Id. ¶ 25.) After his release, he went to Kaiser 13 Hospital and was diagnosed with a concussion. (Id.) 14 Plaintiff was charged with driving under the influence, 15 attempting to take an officer’s firearm in violation of 16 California Penal Code section 148(d), and resisting or preventing 17 an officer from performing his duties in violation of California 18 Penal Code section 69. (Id. ¶ 27.) After two years, the charges 19 for California Penal Code sections 148(d) and 69 were dismissed. 20 (Id. ¶ 28.) 21 II. 12(b)(5) Service of Process 22 Defendants first move to dismiss pursuant to Rule 23 12(b)(5) for insufficient service of process because plaintiff 24 did not timely serve sufficient process within “90 days after the 25 complaint [was] filed.” Fed. R. Civ. P. 4(m), 12(b)(5). Here, 26 although the Complaint was filed on June 17, 2020, plaintiff did 27 not serve the summonses and complaint until December 1, 2021. 28 (Decl. of David Yengoyan ¶¶ 2-3 (Docket No. 9-1).) However, this 1 delay in service resulted almost entirely from the fact that the 2 Clerk did not issue the summonses until November 9, 2021. 3 (Docket No. 6.) The court accepts full responsibility for the 4 sixteen month delay in issuing the summonses, which apparently 5 resulted from a breakdown in communications between the court and 6 the Clerk’s office. 7 “District courts have broad discretion to extend time 8 for service under Rule 4(m),” and may do so retroactively. See 9 Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (citing 10 Henderson v. United States, 517 U.S. 654, 661 (1996)); Mann v. 11 Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). Plaintiff 12 acted promptly to serve all defendants within a reasonable time 13 after the court issued summonses. Plaintiff served the summonses 14 and complaint on the Attorney General’s Office on December 1, 15 2021, and by February 14-15, 2022, all the individually named CHP 16 officers were also served. (Decl. of David Yengoyan ¶¶ 2, 6-7.) 17 Further, the statute of limitations for 28 U.S.C. § 18 1983 claims arising in California is two years. See Maldonado v. 19 Harris, 370 F.3d 945, 954-55 (9th Cir. 2004). Therefore, because 20 the incident in this case occurred in 2018, if the court were not 21 to extend the time for service, plaintiff would run the risk of 22 the action being time-barred if he were required to bring his 23 lawsuit anew. See Lambert v. United States, 44 F.3d 296, 298 24 (5th Cir. 1995) (district court’s order dismissing plaintiff’s 25 suit without prejudice for failure to comply with Rule 4(m) left 26 plaintiff in the same position as if the first suit had never 27 been filed, and the second suit filed beyond the statute of 28 limitations was time barred). 1 Moreover, unlike the court in Efaw, this court is not 2 aware of any prejudice to defendants by granting the extension of 3 time for service. See Efaw, 473 F. 3d at 1041. Further, 4 defendants had “actual notice” of this lawsuit as soon as 5 December 1, 2021, when plaintiff served the Attorney General’s 6 Office, because defendants’ current counsel received the 7 complaint and summonses and worked with plaintiff’s counsel to 8 properly effectuate service upon the defendants. (See Decl. of 9 David Yengoyan ¶¶ 2-3.); Efaw, 473 F. 3d at 1041. In sum, the 10 facts of this case weigh strongly in favor of retroactively 11 extending the prescribed time for service of process. 12 Accordingly, the court will deny defendants’ motion to 13 dismiss pursuant to Rule 12(b)(5). 14 III. 12(b)(6) Failure to State a Claim 15 Defendants also move to dismiss plaintiff’s claims for 16 deliberate fabrication of evidence and malicious prosecution. 17 Plaintiff does not make any argument in opposition to defendants’ 18 motion to dismiss these claims.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 GERALD PITTS, No. 2:20-cv-01243 WBS JDP 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION TO DISMISS 15 CALIFORNIA HIGHWAY PATROL AND PLAINTIFF’S MOTION FOR OFFICERS D. BAUMGARTNER, LEAVE TO AMEND 16 HARDMAN, SKINNER, LANGFORD, DOES 1-25, 17 Defendants. 18
19 ----oo0oo---- 20 Plaintiff filed this action against four California 21 Highway Patrol officers pursuant to 28 U.S.C. § 1983 alleging: 22 (1) excessive force and failure to intervene in violation of the 23 Fourth Amendment, (2) deliberate fabrication of evidence in 24 violation of the Fourteenth Amendment, and (3) malicious 25 prosecution in violation of the Fourth Amendment. (Docket No. 26 1.) Defendants now move to dismiss the complaint pursuant to 27 Federal Rule of Civil Procedure 12(b)(5) for insufficient service 28 1 of process, or alternatively, defendants move to dismiss the 2 complaint’s second and third claims pursuant to Federal Rule of 3 Civil Procedure 12(b)(6). (Docket No. 9.) After defendants 4 moved to dismiss, plaintiff moved for leave to amend his 5 complaint to correct the errors noted by defendants’ motion to 6 dismiss, dismiss the malicious prosecution claim, and allege a 7 new claim of retaliation. (Docket No. 13.) 8 I. Factual Background 9 Plaintiff alleges that on July 1, 2018, he was leaving 10 a bar in Vallejo, California to drive home when he noticed that 11 California Highway Patrol (“CHP”) officers were parked behind him 12 and then began to follow him. (Compl. ¶¶ 9-10.) After some time 13 driving, the CHP officers turned on their lights and plaintiff 14 turned onto the street where he lived and parked in his driveway. 15 (Id. ¶¶ 12-13.) 16 Defendant Baumgartner approached plaintiff’s car and 17 they spoke for approximately 10 minutes. (Id. ¶ 14.) Plaintiff 18 alleges that Baumgartner’s attitude escalated as other CHP 19 officers arrived and that Baumgartner began to ask plaintiff 20 incriminating questions about drinking and driving. (Id. ¶ 15.) 21 Plaintiff informed the defendants that they could speak to his 22 attorney and offered his attorney’s phone number. (Id. ¶ 16.) 23 Defendants then told plaintiff he was under arrest and 24 took him out of his car, threw him against it, and put him in a 25 wristlock. (Id. ¶¶ 17-18.) Plaintiff’ wife came out to the 26 driveway and plaintiff asked defendants if he could give her his 27 attorney’s business card. (Id. ¶ 19.) Defendants then allegedly 28 threw plaintiff onto the ground and smashed his head repeatedly 1 on the concrete. (Id. ¶ 20.) One of the defendants forced 2 plaintiff’s wife back into the home. (Id.) 3 Plaintiff alleges he was lying on his stomach and 4 handcuffed when defendant Langford yelled, “He’s going for my 5 gun, he’s going for my gun.” (Id. ¶ 21.) Plaintiff alleges he 6 was in great fear of his life and asked defendants, “Is that how 7 you do it, is that how you kill us?” (Id. ¶ 22.) To which 8 Langford replied, “That’s how we do it.” (Id.) Once they 9 arrived back at the police station, plaintiff alleges defendants 10 joked that they should have shot or tasered him. (Id. ¶ 24.) 11 Plaintiff was incarcerated in Solano County jail without medical 12 attention. (Id. ¶ 25.) After his release, he went to Kaiser 13 Hospital and was diagnosed with a concussion. (Id.) 14 Plaintiff was charged with driving under the influence, 15 attempting to take an officer’s firearm in violation of 16 California Penal Code section 148(d), and resisting or preventing 17 an officer from performing his duties in violation of California 18 Penal Code section 69. (Id. ¶ 27.) After two years, the charges 19 for California Penal Code sections 148(d) and 69 were dismissed. 20 (Id. ¶ 28.) 21 II. 12(b)(5) Service of Process 22 Defendants first move to dismiss pursuant to Rule 23 12(b)(5) for insufficient service of process because plaintiff 24 did not timely serve sufficient process within “90 days after the 25 complaint [was] filed.” Fed. R. Civ. P. 4(m), 12(b)(5). Here, 26 although the Complaint was filed on June 17, 2020, plaintiff did 27 not serve the summonses and complaint until December 1, 2021. 28 (Decl. of David Yengoyan ¶¶ 2-3 (Docket No. 9-1).) However, this 1 delay in service resulted almost entirely from the fact that the 2 Clerk did not issue the summonses until November 9, 2021. 3 (Docket No. 6.) The court accepts full responsibility for the 4 sixteen month delay in issuing the summonses, which apparently 5 resulted from a breakdown in communications between the court and 6 the Clerk’s office. 7 “District courts have broad discretion to extend time 8 for service under Rule 4(m),” and may do so retroactively. See 9 Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (citing 10 Henderson v. United States, 517 U.S. 654, 661 (1996)); Mann v. 11 Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). Plaintiff 12 acted promptly to serve all defendants within a reasonable time 13 after the court issued summonses. Plaintiff served the summonses 14 and complaint on the Attorney General’s Office on December 1, 15 2021, and by February 14-15, 2022, all the individually named CHP 16 officers were also served. (Decl. of David Yengoyan ¶¶ 2, 6-7.) 17 Further, the statute of limitations for 28 U.S.C. § 18 1983 claims arising in California is two years. See Maldonado v. 19 Harris, 370 F.3d 945, 954-55 (9th Cir. 2004). Therefore, because 20 the incident in this case occurred in 2018, if the court were not 21 to extend the time for service, plaintiff would run the risk of 22 the action being time-barred if he were required to bring his 23 lawsuit anew. See Lambert v. United States, 44 F.3d 296, 298 24 (5th Cir. 1995) (district court’s order dismissing plaintiff’s 25 suit without prejudice for failure to comply with Rule 4(m) left 26 plaintiff in the same position as if the first suit had never 27 been filed, and the second suit filed beyond the statute of 28 limitations was time barred). 1 Moreover, unlike the court in Efaw, this court is not 2 aware of any prejudice to defendants by granting the extension of 3 time for service. See Efaw, 473 F. 3d at 1041. Further, 4 defendants had “actual notice” of this lawsuit as soon as 5 December 1, 2021, when plaintiff served the Attorney General’s 6 Office, because defendants’ current counsel received the 7 complaint and summonses and worked with plaintiff’s counsel to 8 properly effectuate service upon the defendants. (See Decl. of 9 David Yengoyan ¶¶ 2-3.); Efaw, 473 F. 3d at 1041. In sum, the 10 facts of this case weigh strongly in favor of retroactively 11 extending the prescribed time for service of process. 12 Accordingly, the court will deny defendants’ motion to 13 dismiss pursuant to Rule 12(b)(5). 14 III. 12(b)(6) Failure to State a Claim 15 Defendants also move to dismiss plaintiff’s claims for 16 deliberate fabrication of evidence and malicious prosecution. 17 Plaintiff does not make any argument in opposition to defendants’ 18 motion to dismiss these claims. (See Pl.’s Opp’n.) 19 It is unclear whom plaintiff’s deliberate fabrication 20 of evidence is against. Plaintiff’s complaint states the claim 21 is “as to Defendant,” but does not clarify which defendant. (See 22 Compl. at 7.) The paragraphs within the alleged claim refer 23 alternatively to solely “defendant Langmore”1 and also all 24 defendants. (See Compl. ¶¶ 32-36.) For example, plaintiff 25
26 1 “Langmore” is not a named defendant in this action. Plaintiff may be referring to named defendant Langford, but the 27 court cannot definitively make that assumption given the continuing discrepancies in the complaint. 28 1 alleges “defendant Langmore, under penalty of perjury 2 deliberately fabricated evidence,” but then goes onto state in 3 the same claim that “the conduct of defendants . . . was intended 4 to cause injury,” without alleging any conduct by the other 5 defendants. (Compare Compl. ¶ 33, with id. ¶ 35.) If plaintiff 6 indeed intends to state a claim for deliberate fabrication of 7 evidence against all defendants, plaintiff alleges no facts in 8 support of such a claim. At oral argument, plaintiff’s counsel 9 agreed that these are deficiencies that must be cured. 10 Accordingly, the court will grant defendants’ motion to dismiss 11 plaintiff’s deliberate fabrication of evidence claim. 12 Plaintiff’s claim for malicious prosecution is brought 13 against all defendants. (Compl. at 8.) To state a claim for 14 malicious prosecution, plaintiff must plausibly allege “that the 15 defendants prosecuted [him] with malice and without probable 16 cause, and that they did so for the purpose of denying [him] 17 equal protection or another specific constitutional right.” 18 Lacey v. Maricopa Cnty., 693 F.3d 896, 919 (9th Cir. 2012). 19 However, plaintiff merely alleges the elements of the claim in 20 conclusory terms. (See Compl. ¶¶ 37-42); Ashcroft v. Iqbal, 556 21 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a 22 cause of action, supported by mere conclusory statements, do not 23 suffice.”) The complaint includes no factual allegations that 24 all defendants engaged in conduct such as “omitting relevant 25 information, [] including false information, or [] pressing the 26 prosecutor to file charges.” See Newman v. Cnty. of Orange, 457 27 F.3d 991, 995 (9th Cir. 2006). 28 Accordingly, the court will grant defendants’ motion to nee enn meen en ne nn nen nn nnn on I EN
1 dismiss plaintiff’s claim for malicious prosecution. 2 IT IS THEREFORE ORDERED that defendants’ motion to 3 dismiss the complaint (Docket No. 9) in its entirety pursuant to 4 Federal Rule of Civil Procedure 12(b) (5) be, and the same hereby 5 is, DENIED. 6 IT IS FURTHER ORDERED that defendants’ motion to 7 dismiss plaintiff’s claims (Docket No. 93) for deliberate 8 fabrication of evidence and malicious prosecution pursuant to 9 Federal Rule of Civil Procedure 12(b) (6) be, and the same hereby 10 is, GRANTED. 11 Plaintiff has twenty days from the date of this Order 12 to file a first amended complaint, in which he is free to include 13 new claims as well as to reallege claims contained in the 14 original complaint, if he can do so consistent with this Order. 15 Because the court grants leave to file an amended complaint 16 consistent with this Order, plaintiff’s separate motion for leave 17 to amend (Docket No. 13) is moot. 18 | Dated: June 14, 2022 eh tle HK Dd Kt 19 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
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