Sekerke v. City of National City

S.D. California

Sekerke v. City of National City

DecidedJanuary 20, 2021

Docket3:19-cv-01360

StatusUnknown

This text of Sekerke v. City of National City (Sekerke v. City of National City) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sekerke v. City of National City, (S.D. Cal. 2021).

Pincite

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH SEKERKE Case No.: 19cv1360-LAB (MSB)

12 Plaintiff, ORDER OVERRULING 13 v. OBJECTIONS TO REPORT AND RECOMMENDATION; AND 14 CITY OF NATIONAL CITY, et al.

15 Defendants. ORDER GRANTING MOTION TO DISMISS 16

17 18 Plaintiff Keith Sekerke, who is proceeding in forma pauperis but who is 19 represented by counsel, filed a civil rights complaint. 20 Sekerke alleges that when National City police officers arrested him, they 21 neglected to secure his home, resulting in its being looted and his belongings lost. 22 He also alleges his car was confiscated and disposed of, along with property inside 23 it. After the Court screened and dismissed his amended complaint pursuant to 28 24 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A, Sekerke filed his second amended 25 complaint (the “SAC”). Defendants moved to dismiss, and the motion was referred 26 to Magistrate Judge Michael Berg for report and recommendation. 27 Judge Berg received briefing and issued his report and recommendation 28 (Docket no. 27, the “R&R”). The R&R recommended dismissing the SAC’s first 1 through fourth causes of action with leave to amend, and exercising its discretion 2 to decline to exercise supplemental jurisdiction over its fifth cause of action, a state 3 claim. The SAC’s first claim is brought under 42 U.S.C. § 1983, for Fourth 4 Amendment violations. The second and third claims arise under state law. The 5 fourth claim, against the City of National City, is brought pursuant to Monell v. Dept. 6 of Social Servs., 436 U.S. 658 (1978). Sekerke filed written objections, to which 7 Defendants filed a reply. 8 Legal Standards 9 A district court has jurisdiction to review a Magistrate Judge's report and 10 recommendation on dispositive matters. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 11 72(b). “The district judge must determine de novo any part of the magistrate judge's 12 disposition that has been properly objected to.” Id. Section 636(b)(1)(C) similarly 13 requires that a district judge “make a de novo determination of those portions of 14 the report or specified proposed findings or recommendations to which objection 15 is made.” “A judge of the court may accept, reject, or modify, in whole or in part, 16 the findings or recommendations made by the magistrate judge.” Id. The Court has 17 conducted a de novo review of the portions of the R&R to which Sekerke has 18 objected. 19 The R&R correctly states legal standards for motions to dismiss, and 20 Sekerke does not object to these. 21 Objections to the R&R 22 Sekerke objects on two grounds: 1) through discovery, he says, he can 23 determine which Defendant did what, and on that basis he can allege Defendants’ 24 actions specifically, rather than conclusorily grouping them all together; and 2) he 25 believes he can state a Fourteenth Amendment claim. 26 Objection 1 27 Sekerke suggests that the Court should either allow him to proceed against 28 “Doe Defendants,” and after an opportunity for discovery name them. Or, he says, 1 he can make some specific allegations even without discovery. It appears Sekerke 2 is agreeing with the R&R that certain of his claims should be dismissed with leave 3 to amend. 4 A plaintiff can name “Doe” Defendants where their identity is unknown when 5 the complaint is filed. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 6 But here, Sekerke knows Defendants’ names and identities, and what they 7 collectively did. Because he was present for most of the events giving rise to his 8 claims, it is unclear why he did not already allege the identity of at least some of 9 the officers. The R&R correctly notes that Sekerke would likely know who arrested 10 him, who took his house keys, and who called his girlfriend to pick up his dog. He 11 would also know which officer he asked to lock up his house. Why he did not 12 identify these people — even though he knows all their names — is never 13 explained. Sekerke also seeks to hold every Defendant responsible as part of a 14 conspiracy, without alleging facts plausibly suggesting they all conspired together 15 or explaining why the acts and omissions the SAC complains of were the product 16 of a conspiracy. In particular, events leading to the looting of Sekerke’s house are 17 distinctly unlikely to have been the product of a conspiracy. 18 In effect, Sekerke is treating Defendants as Doe Defendants for some 19 purposes, but not others. He declines to allege which of them did what, even when 20 it is apparent he could. But by naming all ten individuals as Defendants, he 21 obligates them all to file responses, offer defenses, and submit to discovery even 22 before they know what his accusations against each of them are. See Ashcroft v. 23 Iqbal, 556 U.S. 662, 684–85 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 24 544, 559 (2007)) (rejecting the suggestion that discovery can go ahead before a 25 plausible claim has been pled). 26 Sekerke’s objections also imply that he is suing National City and perhaps 27 some of the individual Defendants, not because they were involved in depriving 28 him of his rights, but rather because he thinks they have information and he wants 1 to seek discovery from them. While people and entities are sometimes joined as 2 necessary parties even when their involvement is only indirect, merely being a 3 useful source of information is not enough. See Fed. R. Civ. P. 19(a), 20(a). 4 Furthermore, discovery can be sought from non-parties, if necessary. There is no 5 reason to burden someone with discovery who is not otherwise a proper party. See 6 Soto v. Castlerock Farming & Transp., Inc., 282 F.R.D. 492, 505 (E.D. Cal., 2012) 7 (requiring plaintiffs to seek documents from named defendants before seeking 8 them from non-parties). 9 Objection 2 10 In its screening order, the Court dismissed Sekerke’s Fourteenth 11 Amendment claim. The SAC, which Sekerke filed after the Court’s screening order, 12 does not include a Fourteenth Amendment claim. The R&R only deals with the 13 Fourteenth Amendment in passing, when recounting the Court’s dismissal of the 14 previous Fourteenth Amendment claim and when explaining that Fourteenth 15 Amendment standards have no bearing on a Fourth Amendment claim. 16 In fact, Sekerke is objecting to the Court’s screening order, rather than the 17 R&R. If he wishes to seek reconsideration of that order, he must comply with Local 18 Rules and the Court’s standing order in civil cases, neither of which countenances 19 indirect requests for reconsideration inserted into other documents. If, on the other 20 hand, he intends to raise a claim that the Court’s screening order did not foreclose, 21 he must obtain Defendants’ consent or the Court’s leave to amend, as provided 22 under Fed. R. Civ. P. 15. 23 Conclusion and Order 24 For these reasons, the Court OVERRULES Sekerke’s objections and 25 ADOPTS the R&R. The motion to dismiss is GRANTED IN PART.

Free access — add to your briefcase to read the full text and ask questions with AI

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH SEKERKE Case No.: 19cv1360-LAB (MSB)

12 Plaintiff, ORDER OVERRULING 13 v. OBJECTIONS TO REPORT AND RECOMMENDATION; AND 14 CITY OF NATIONAL CITY, et al.

15 Defendants. ORDER GRANTING MOTION TO DISMISS 16

17 18 Plaintiff Keith Sekerke, who is proceeding in forma pauperis but who is 19 represented by counsel, filed a civil rights complaint. 20 Sekerke alleges that when National City police officers arrested him, they 21 neglected to secure his home, resulting in its being looted and his belongings lost. 22 He also alleges his car was confiscated and disposed of, along with property inside 23 it. After the Court screened and dismissed his amended complaint pursuant to 28 24 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A, Sekerke filed his second amended 25 complaint (the “SAC”). Defendants moved to dismiss, and the motion was referred 26 to Magistrate Judge Michael Berg for report and recommendation. 27 Judge Berg received briefing and issued his report and recommendation 28 (Docket no. 27, the “R&R”). The R&R recommended dismissing the SAC’s first 1 through fourth causes of action with leave to amend, and exercising its discretion 2 to decline to exercise supplemental jurisdiction over its fifth cause of action, a state 3 claim. The SAC’s first claim is brought under 42 U.S.C. § 1983, for Fourth 4 Amendment violations. The second and third claims arise under state law. The 5 fourth claim, against the City of National City, is brought pursuant to Monell v. Dept. 6 of Social Servs., 436 U.S. 658 (1978). Sekerke filed written objections, to which 7 Defendants filed a reply. 8 Legal Standards 9 A district court has jurisdiction to review a Magistrate Judge's report and 10 recommendation on dispositive matters. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 11 72(b). “The district judge must determine de novo any part of the magistrate judge's 12 disposition that has been properly objected to.” Id. Section 636(b)(1)(C) similarly 13 requires that a district judge “make a de novo determination of those portions of 14 the report or specified proposed findings or recommendations to which objection 15 is made.” “A judge of the court may accept, reject, or modify, in whole or in part, 16 the findings or recommendations made by the magistrate judge.” Id. The Court has 17 conducted a de novo review of the portions of the R&R to which Sekerke has 18 objected. 19 The R&R correctly states legal standards for motions to dismiss, and 20 Sekerke does not object to these. 21 Objections to the R&R 22 Sekerke objects on two grounds: 1) through discovery, he says, he can 23 determine which Defendant did what, and on that basis he can allege Defendants’ 24 actions specifically, rather than conclusorily grouping them all together; and 2) he 25 believes he can state a Fourteenth Amendment claim. 26 Objection 1 27 Sekerke suggests that the Court should either allow him to proceed against 28 “Doe Defendants,” and after an opportunity for discovery name them. Or, he says, 1 he can make some specific allegations even without discovery. It appears Sekerke 2 is agreeing with the R&R that certain of his claims should be dismissed with leave 3 to amend. 4 A plaintiff can name “Doe” Defendants where their identity is unknown when 5 the complaint is filed. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 6 But here, Sekerke knows Defendants’ names and identities, and what they 7 collectively did. Because he was present for most of the events giving rise to his 8 claims, it is unclear why he did not already allege the identity of at least some of 9 the officers. The R&R correctly notes that Sekerke would likely know who arrested 10 him, who took his house keys, and who called his girlfriend to pick up his dog. He 11 would also know which officer he asked to lock up his house. Why he did not 12 identify these people — even though he knows all their names — is never 13 explained. Sekerke also seeks to hold every Defendant responsible as part of a 14 conspiracy, without alleging facts plausibly suggesting they all conspired together 15 or explaining why the acts and omissions the SAC complains of were the product 16 of a conspiracy. In particular, events leading to the looting of Sekerke’s house are 17 distinctly unlikely to have been the product of a conspiracy. 18 In effect, Sekerke is treating Defendants as Doe Defendants for some 19 purposes, but not others. He declines to allege which of them did what, even when 20 it is apparent he could. But by naming all ten individuals as Defendants, he 21 obligates them all to file responses, offer defenses, and submit to discovery even 22 before they know what his accusations against each of them are. See Ashcroft v. 23 Iqbal, 556 U.S. 662, 684–85 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 24 544, 559 (2007)) (rejecting the suggestion that discovery can go ahead before a 25 plausible claim has been pled). 26 Sekerke’s objections also imply that he is suing National City and perhaps 27 some of the individual Defendants, not because they were involved in depriving 28 him of his rights, but rather because he thinks they have information and he wants 1 to seek discovery from them. While people and entities are sometimes joined as 2 necessary parties even when their involvement is only indirect, merely being a 3 useful source of information is not enough. See Fed. R. Civ. P. 19(a), 20(a). 4 Furthermore, discovery can be sought from non-parties, if necessary. There is no 5 reason to burden someone with discovery who is not otherwise a proper party. See 6 Soto v. Castlerock Farming & Transp., Inc., 282 F.R.D. 492, 505 (E.D. Cal., 2012) 7 (requiring plaintiffs to seek documents from named defendants before seeking 8 them from non-parties). 9 Objection 2 10 In its screening order, the Court dismissed Sekerke’s Fourteenth 11 Amendment claim. The SAC, which Sekerke filed after the Court’s screening order, 12 does not include a Fourteenth Amendment claim. The R&R only deals with the 13 Fourteenth Amendment in passing, when recounting the Court’s dismissal of the 14 previous Fourteenth Amendment claim and when explaining that Fourteenth 15 Amendment standards have no bearing on a Fourth Amendment claim. 16 In fact, Sekerke is objecting to the Court’s screening order, rather than the 17 R&R. If he wishes to seek reconsideration of that order, he must comply with Local 18 Rules and the Court’s standing order in civil cases, neither of which countenances 19 indirect requests for reconsideration inserted into other documents. If, on the other 20 hand, he intends to raise a claim that the Court’s screening order did not foreclose, 21 he must obtain Defendants’ consent or the Court’s leave to amend, as provided 22 under Fed. R. Civ. P. 15. 23 Conclusion and Order 24 For these reasons, the Court OVERRULES Sekerke’s objections and 25 ADOPTS the R&R. The motion to dismiss is GRANTED IN PART. 26 The SAC’s first, second, third, and fourth claims are DISMISSED for failure 27 to state a claim. Sekerke has leave to amend his complaint consistently with the 28 R&R. The Court in its discretion DECLINES to exercise supplemental jurisdiction 1 the SAC’s fifth claim. Within 21 calendar days of the date this order is 2 ||issued, Sekerke may file his third amended complaint. He must not add new 3 ||claims without leave. If Sekerke again fails to amend successfully, leave to amend 4 ||may be denied and his complaint may be dismissed without leave to amend. 5 6 IT IS SO ORDERED. 7 ||Dated: January 20, 2021 Laud A: unm 9 Honorable Larry Alan Burns 10 Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Cite This Page — Counsel Stack

Bluebook (online)

Sekerke v. City of National City, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sekerke-v-city-of-national-city-casd-2021.

Opinion

Related

Cite This Page — Counsel Stack