Sepehry-Fard v. Lee

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN JOSE DIVISION 9 10 FAREED SEPEHRY-FARD, Case No. 5:20-cv-03585-EJD

11 Plaintiff, ORDER GRANTING THE COUNTY DEFENDANTS’ MOTION TO DISMISS 12 v.

13 H. LEE, et al., Re: Dkt. Nos. 54, 55, 56 Defendants. 14

15 Before the Court is Santa Clara County Sherriff Laurie Smith, Deputy H. Lee, Deputy 16 Michael McRoberts, and Deputy Hakeem Lee’s (“the County Defendants”) motion to dismiss 17 Plaintiff Fareed Sepehry-Fard’s Second Amended Complaint (“SAC”). Defendants’ Motion to 18 Dismiss Plaintiff’s Second Amended Complaint (“Mot.”), Dkt. No. 54. Plaintiff filed an 19 opposition,1 and the County Defendants filed a reply. Opposition and Response to Defendants’ 20 Motion to Dismiss (“Opp.”), Dkt. No. 60; Defendants’ Reply Brief in Support of Their Motion to 21

22 1 Plaintiff filed a Motion to Strike parts of the County Defendants’ motion to dismiss pursuant to the Thirteenth Amendment. See Dkt. No. 55. The Thirteenth Amendment, which abolished 23 slavery within the United States, is not applicable to this case. The Thirteenth Amendment cited by Plaintiff is not an amendment to the United States Constitution—rather, it was a proposed 24 amendment. Plaintiff’s motion to strike is DENIED.

25 Plaintiff also filed an administrative motion for leave to respond to the County Defendants’ motion to dismiss. See Dkt. No. 56. Under this Court’s local rules, a plaintiff does not need leave 26 to file an opposition. See N.D. Cal. Civ. L.R. 7-3(a). Pursuant to Local Rule 7-3(a), Plaintiff was able to file an opposition to the County Defendants’ motion to dismiss. See Dkt. No. 60. The 27 Court thus TERMINATES Plaintiff’s administrative motion for leave to respond to the County Defendants’ motion to dismiss. 1 Dismiss (“Reply”), Dkt. No. 61. For the foregoing reasons, the Court GRANTS the County 2 Defendants’ motion to dismiss without leave to amend. 3 I. BACKGROUND 4 On May 29, 2020, Plaintiff, proceeding pro se, filed a complaint against the County 5 Defendants and other parties. See Complaint, Dkt. No. 1. Plaintiff later submitted leave to 6 proceed in forma pauperis (“IFP”), which this Court granted in part and denied in part. See Dkt. 7 No. 13. The Court allowed Plaintiff’s 42 U.S.C. § 1983 claims to proceed against the County 8 Defendants but dismissed Plaintiff’s claims related to the 12309 Saratoga Creek Dr. property. Id. 9 The Court allowed Plaintiff to amend his claim that Defendants Jan T. Chilton, Joseph W. 10 Guzzetta, Adam N. Barasch, Bernard J. Kornberg, and Severson & Werson (“the Bank 11 Defendants”) conspired against him. Id. at 2–3. 12 Plaintiff filed a first amended complaint. In a subsequent IFP order, the Court found that 13 Plaintiff’s first amended complaint did not add any actual allegations to support Plaintiff’s 14 conspiracy claims against the Bank Defendants. See Dkt. No. 16. The Court dismissed the Bank 15 Defendants from this action without leave to amend. See id. at 3. 16 On February 16, 2021, the County Defendants moved to dismiss the first amended 17 complaint under Federal Rule of Civil Procedure 8(a) on the grounds that Plaintiff’s allegations 18 did not provide adequate notice. The Court granted the motion and dismissed the first amended 19 complaint. The Court agreed that “the exact claims [were] difficult to discern from” the first 20 amended complaint, and that the complaint did “not describe any discernable cause of action.” 21 Dkt. No. 46 at 3, 5. The Court also noted that while it “had believed Plaintiff was seeking relief 22 under Section 1983, Plaintiff explicitly rejected [that] notion” by only asserting claims under the 23 Fourth Amendment of the United States Constitution. Id. at 5–6. The Court thus granted the 24 County Defendants’ motion to dismiss with leave to amend. 25 Plaintiff thereafter filed his SAC. See Dkt. No. 47. Unlike the prior complaints, which did 26 not specify any cause of action, the SAC names twelve causes of action, including several under 27 § 1983. 1 Plaintiff alleges that on February 20, 2020, Defendants McRoberts and Lee approached 2 him at 55 West Younger Avenue in San Jose, where the Sheriffs’ Office is located. SAC ¶ 33; see 3 also Fed. R Evid. 201(b)(2) (allowing a Court to take judicial notice that 55 West Younger 4 Avenue is the Sheriff’s headquarters because “it can be accurately and readily determined from 5 sources whose accuracy cannot reasonably be questioned”). Plaintiff alleges that McRoberts and 6 Lee “became aggressive towards [him]” and that Plaintiff “started to audio or video them at or 7 about 11:22 a.m.” SAC ¶ 33. McRoberts then seized Plaintiff’s phone without cause and stopped 8 Plaintiff from taking audio or video recordings. SAC ¶ 35. He alleges that McRoberts and Lee 9 then “twisted” his arms, handcuffed him, and “kidnapped” him. SAC ¶¶ 36–37. Once there, 10 Plaintiff alleges that Lee “tied [his] left hand to a chair with severe and unwanted force,” 11 damaging his hand and prompting “severe heart palpitations [sic]” and “anxiety.” SAC ¶¶ 38, 40. 12 Plaintiff also alleges that he informed McRoberts and Lee of his need to take his prescribed 13 medications and that his requests were ignored. SAC ¶¶ 41–42, 50. While Plaintiff was 14 restrained, he alleges that McRoberts searched his wallet without “any court order.” SAC ¶ 45. 15 Less than an hour after being detained, Plaintiff was released. SAC ¶ 55. He alleges that as a 16 result of his detention, he “was forced to go to the emergency hospital due to the severe pain and 17 suffering these two public servants . . . caused.” SAC ¶ 58. 18 Plaintiff further alleges that Defendant Smith is liable for “failure to train” her staff, 19 specifically her staff’s “poor knowledge of the law.” SAC ¶ 63. Plaintiff contends that Smith was 20 aware that Plaintiff was questioned by several of her employees, who did not “k[now] how many 21 amendments were in the constitution,” and that Plaintiff has “provided ample time and notice to 22 Smith to educate her staff regarding the constitution, [and] its amendments.” SAC ¶¶ 70, 72. 23 Plaintiff contends that Smith was aware that McRoberts and Lee were “ignorant of their 24 mandatory duties related to the Oath they had taken.” SAC ¶ 68.2 25

26 2 Plaintiff also alleges that about five years ago, unidentified agents of Defendant Smith commenced a campaign of “harassment, intimidation, demonization, [and] stalking” of Plaintiff. 27 SAC ¶ 111. There are no allegations that connect this to the alleged February 20, 2020 incident. The Court thus does not address these allegations as they have no relevance to the case at hand. 1 Plaintiff alleges that as a result of the County Defendants’ conduct, he suffered economic, 2 physical, and emotional damage. SAC ¶¶ 81–82. Plaintiff continues to cite his own affidavit, 3 which he considers a “non-judicial judgment” that supports his allegations. SAC ¶ 89; see also 4 SAC ¶ 106 (requesting the Court to enforce his non-judicial judgment). 5 II. LEGAL STANDARD 6 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a 7 complaint must plead “sufficient factual matter to state a facially plausible claim to relief.” 8 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1042 (9th Cir. 2010) (citing 9 Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Dismissal for failure to state a claim is “proper only 10 where there is no cognizable legal theory, or an absence of sufficient facts alleged to support a 11 cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). That is, a 12 complaint can only survive a motion to dismiss for failure to state a claim “when the plaintiff 13 pleads factual content that allows the court to draw the reasonable inference that the defendant is 14 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of 15 a cause of action, supported by mere conclusory statements, do not suffice.” Id. 16 In testing the sufficiency of a complaint, “the court is not required to accept legal 17 conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn 18 from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994); 19 see also Iqbal, 556 U.S. at 678 (complaint does not suffice when “it tenders naked assertions 20 devoid of further factual enhancement” (quotation marks and citation omitted)). 21 A complaint drafted by a pro se plaintiff is held to a less stringent standard than a formal 22 pleading drafted by a lawyer. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a court need 23 not give pro se plaintiffs “the benefit of every conceivable doubt” and should only draw 24 reasonable factual inferences in their favor. McKinney v. De Bord, 507 F.2d 501, 504 (9th Cir. 25 1974). A court also may not “supply essential elements of the claim that were not initially pled.” 26 Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 27 1 III. DISCUSSION 2 A. Causes of Action One, Four, and Six–Eleven 3 Pursuant to this Court’s prior orders, Plaintiff is only authorized to pursue claims arising 4 under 42 U.S.C. § 1983. Plaintiff’s first, fourth, sixth, seventh, eighth, ninth, tenth, and eleventh 5 causes of action are not § 1983 claims. Plaintiff’s causes of action now include not only his 6 alleged Fourth Amendment claims arising under § 1983, but also claims for violations of 7 California’s Unfair Competition Law (first cause of action); familial deprivation under the 8 Fourteenth Amendment to the United States Constitution (fourth cause of action); conspiracy to 9 violate civil rights under 42 U.S.C. § 1985 (sixth cause of action); violation of the Tom Bane Civil 10 Rights Act, Cal. Civ. Code § 52.1 (seventh cause of action); assault and battery (eighth cause of 11 action); intentional infliction of emotional distress (ninth cause of action); negligence (tenth cause 12 of action); and violation of the Eighth Amendment of the United States Constitution and Article I, 13 Sections 7 and 17 of the California Constitution (eleventh cause of action). 14 Because this Court has limited the permissible scope of amendment to § 1983 claims that 15 arise under the Fourth Amendment, see Dkt. No. 46 at 5–6, the Court DISMISSES Plaintiff’s 16 first, fourth, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action. See Bernstein v. 17 U.S. Dep’t of Hous. & Urban Dev., 2021 WL 121125, at *2 (N.D. Cal. Jan. 13, 2021) (“The Court 18 has a continuing duty to dismiss any case in which a party is proceeding in forma pauperis upon a 19 determination that the case is . . . fails to state a claim on which relief may be granted . . . .”); see 20 also Andre v. Bank of Am., N.A., 2015 WL 2194187, at *2 (N.D. Cal. May 8, 2015) (“And there is 21 no suggestion in this court’s previous order granting dismissal with leave to amend that 22 amendment could include claims outside those initially pleaded. On this basis alone, these new 23 claims are barred . . . .” (citing Fed. R. Civ. P. 15(a)) (emphasis added)); DeLeon v. Wells Fargo 24 Bank, N.A., 2010 WL 4285006, at *3 (N.D. Cal. Oct. 22, 2010) (“In cases like this one, however, 25 where leave to amend is given to cure deficiencies in certain specified claims, courts have agreed 26 that new claims alleged for the first time in the amended pleading should be dismissed or 27 stricken.” (collecting cases)); PB Farradyne, Inc. v. Peterson, 2006 WL 2578273, at *3 (N.D. Cal. 1 Sept. 6, 2006) (striking new theory of liability in amended pleading without leave to amend 2 because the theory was outside the scope of the prior leave to amend). 3 B. Causes of Action Two, Three, Five, and Twelve 4 Having dismissed Plaintiff’s first, fourth, sixth, seventh, eighth, ninth, tenth, and eleventh 5 causes of action, only four causes of action remain—the second cause of action (§ 1983 claim for 6 excessive force arising under the Fourth Amendment), the third cause of action (§ 1983 claim for 7 denial of medical care arising under the Fourth Amendment), the fifth cause of action (§ 1983 8 claim for Monell liability against Defendant Smith), and the twelfth cause of action (§ 1983 claim 9 against Defendant Smith for failure to train). 10 1. Second Cause of Action 11 The County Defendants argue that Plaintiff’s second cause of action for excessive force 12 under the Fourth Amendment should be dismissed as to Defendant Smith because Plaintiff does 13 not plead that Smith was personally involved in the allegedly unconstitutional activity. Reply at 4. 14 The County Defendants do not argue that Plaintiff’s second cause of action fails to state a claim 15 against Defendants McRoberts and Lee. See Mot. at 9–10; Reply at 4–5. 16 “Under Section 1983, supervisory officials are not liable for actions of subordinates on any 17 theory of vicarious liability.” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (quotation 18 marks and citations omitted). “A supervisor may be liable only if (1) he or she is personally 19 involved in the constitutional deprivation, or (2) there is a sufficient causal connection between the 20 supervisor’s wrongful conduct and the constitutional violation.” Id. (quotation marks and citation 21 omitted). The latter theory requires that “supervisory officials implement a policy so deficient that 22 the policy itself is a repudiation of constitutional rights and is the moving force of a constitutional 23 violation.” Id. (quotation marks and citation omitted). 24 Plaintiff’s allegations do not connect Defendant Smith to the alleged Fourth Amendment 25 violation. Allegations that Defendant Smith knew her that her employees did not know the 26 amendments in the Constitution neither demonstrates personal involvement in the alleged incident 27 nor identifies an unconstitutional policy. See SAC ¶ 70; Opp. at 13. Likewise, Plaintiff’s bare 1 allegations that McRoberts and Lee’s conduct was the result of Defendant Smith’s alleged failure 2 to train are insufficient. See SAC ¶ 174; see also Davis v. City of Ellensburg, 869 F.2d 1230, 1233 3 (9th Cir. 1989) (“A plaintiff cannot prove the existence of a municipal policy or custom based 4 solely on the occurrence of a single incident of unconstitutional action by a non-policymaking 5 employee.” (collecting cases)); Iqbal, 556 U.S. at 678. The Court DISMISSES Plaintiff’s second 6 cause of action as to Defendant Smith. 7 2. Third and Twelfth Causes of Action 8 The County Defendants argue that Plaintiff’s third cause of action for denial of medical 9 care under the Fourth Amendment and twelfth cause of action for failure to train under the Fourth 10 Amendment also fail to state a claim against Defendant Smith. The County Defendants do not 11 argue that Plaintiff’s third cause of action fails to state a claim against Defendants McRoberts and 12 Lee. See Mot. at 10–11; Reply at 6. 13 Plaintiff’s third cause of action for denial of medical care is brought under § 1983 and 14 purportedly arises under the Fourth Amendment. SAC ¶ 184. The claim is premised on Plaintiff’s 15 allegations that McRoberts and Lee purposefully denied him medical treatment. SAC ¶¶ 184–85. 16 Plaintiff offers no allegations regarding Defendant Smith’s involvement in McRoberts and Lee’s 17 alleged conduct. For this reason, the Court DISMISSES Plaintiff’s third cause of action as to 18 Defendant Smith. 19 Plaintiff’s twelfth cause of action for failure to train fails for the same reasons as Plaintiff’s 20 second cause of action. The claim is premised on Defendant Smith’s purported “failure to provide 21 adequate training” to McRoberts and Lee. SAC ¶ 322. However, Plaintiff does not allege any 22 facts from which the Court could infer which training practice caused his injuries or that 23 Defendant Smith was responsible for any alleged failure to train. See supra; see also, e.g., Gillette 24 v. Delmore, 979 F.3d 1342, 1348 (9th Cir. 1992), overruled on other grounds by Castro v. Cnty. of 25 L.A., 873 F.3d 1060, 1070 (9th Cir. 2016). For this reason, the Court DISMISSES Plaintiff’s 26 twelfth cause of action as to Defendant Smith. 27 1 3. Fifth Cause of Action 2 The County Defendants last argue that Plaintiff’s fifth cause of action for Monell liability 3 against Defendant Smith must be dismissed. Plaintiff alleges that “Defendant Smith bears liability 4 because [her] policies, practices, and/or customs were a cause of Plaintiff’s injuries.” SAC ¶ 210 5 (emphasis added). Monell does not “concern liability of individuals acting under color of state 6 law.” Guillory v. Cnty. of Orange, 731 F.2d 1379, 1382 (9th Cir. 1984). Thus, Plaintiff’s 7 attempts to premise Monell liability on Defendant Smith’s individual actions is misplaced. 8 Further, Plaintiff does not plausibly allege that Defendant Smith’s conduct arose to the 9 level of an “official policy” within the meaning of Monell. See McKinley v. City of Eloy, 705 F.2d 10 1110, 1116 (9th Cir. 1983) (“An action or policy can be ‘official’ if ‘made by [the municipality’s] 11 law makers or by those whose edicts or acts may fairly be said to represent official policy.’ 12 Conversely, municipalities are not subject to section 1983 liability under a respondeat superior 13 theory for the isolated torts of their employees.” (quoting Monell v. Dep’t of Soc. Servs. of N.Y., 14 436 U.S. 658, 691 (1978))). Plaintiff only alleges that Defendant Smith “[e]mploy[ed] and 15 retain[ed]” deputies, including McRoberts and Lee, and “[i]nadequately supervis[ed], train[ed], 16 control[ed], assign[ed], and discipline[ed] County sheriff’s deputies.” SAC ¶ 213. Plaintiff also 17 alleges that Defendant Smith maintained an “unconstitutional policy, custom and practice of 18 detaining and arresting individuals . . . using excessive force.” SAC ¶ 213. These allegations are 19 too conclusory to establish liability under Monell. See supra. For these reasons, the Court 20 DISMISSES Plaintiff’s fifth cause of action. 21 IV. CONCLUSION 22 When dismissing a complaint for failure to state a claim, a court should grant leave to 23 amend “unless it determines that the pleading could not possibly be cured by the allegation of 24 other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). This complaint represents 25 Plaintiff’s third attempt at pleading viable causes of action, and in view of Plaintiff’s repeated 26 failure to cure the deficiencies identified by this Court, the foregoing dismissals are with 27 prejudice. Defendant Smith is dismissed from this action. Plaintiff’s second, third, and fourth 1 causes of action may proceed against Defendants McRoberts and Lee. Plaintiff is not permitted to 2 || file an amended complaint without leave of the Court or a stipulation by the parties. 3 The Case Management Conference set for January 13, 2022 is CONTINUED to March 4 17, 2022 at 10:00 a.m. The Parties shall file a joint case management statement by March 7, 2022. 5 IT IS SO ORDERED. 6 Dated: December 27, 2021 7 8 EDWARD J. DAVILA 9 United States District Judge 10 11 12

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Z 18 19 20 21 22 23 24 25 26 27 28 || Case No.: 5:20-cv-03585-EJD ORDER GRANTING THE COUNTY DEFENDANTS’ MOTION TO DISMISS