Silverman v. Gagnon

• Court: District Court, N.D. California
• Decided: March 30, 2020
• Docket: 5:18-cv-07621
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JACOB S. SILVERMAN, 11 Case No. 18-07621 BLF (PR) Plaintiff, 12 ORDER SCREENING AMENDED COMPLAINT PURSUANT TO 28 v. 13 U.S.C. § 1915A; GRANTING

DEFENDANTS’ MOTION TO 14 DENNIS GAGNON, et al., DISMISS 15 Defendants.

16 (Docket No. 25)

17 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983 against officers of the Humboldt County Sheriff Department (“HCSD”). 20 On May 10, 2019, the Court found the complaint, liberally construed, stated a cognizable 21 claim under the Fourth amendment for an unlawful traffic stop and ordered the matter 22 served on Defendants Deputy Dennis Gagnon and Sgt. Jesse Taylor at HCSD. Dkt. No. 7. 23 The Court granted Defendants’ motion to dismiss the complaint but with leave to amend 24 for Plaintiff to attempt to correct the deficiencies in the complaint and to allege new 25 claims. Dkt. No. 21. Plaintiff filed a first amended complaint. Dkt. No. 24, hereinafter 26 “Am. Compl.” Before the Court could conduct an initial screening, Defendants filed a 27 motion to dismiss the amended complaint as time-barred and for failure to state a claim for 1 relief. Dkt. No. 25, hereinafter “Mot.” Defendants also assert that newly named 2 Defendants in the amended complaint should be dismissed for failure to comply with Rule 3 15 and this Court’s August 26, 2019 order. Id. Plaintiff filed opposition, Dkt. No. 26, and 4 Defendants filed a reply, Dkt. No. 29.1 5 For the reasons discussed below and based on an initial screening, the claims 6 against newly named Defendants and Humboldt County are DISMISSED and Defendants’ 7 motion to dismiss based on untimeliness is GRANTED. 8 9 DISCUSSION 10 I. Screening Pursuant to § 1915A(a) 11 A. Standard of Review 12 A federal court must conduct a preliminary screening in any case in which a 13 prisoner seeks redress from a governmental entity or officer or employee of a 14 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 15 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 16 upon which relief may be granted or seek monetary relief from a defendant who is immune 17 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 18 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 20 elements: (1) that a right secured by the Constitution or laws of the United States was 21 violated, and (2) that the alleged violation was committed by a person acting under the 22 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 23 /// 24 1 Plaintiff filed a sur-reply to Defendants’ reply. Dkt. No. 31. In the order of service, the 25 Court stated that any dispositive motion filed by Defendants would be deemed submitted as of the date the reply brief is due. Dkt. No. 7 at 6. Nor did Plaintiff obtain court 26 approval prior to filing the additional papers as required under the Northern District’s 1 B. Plaintiff’s Claims 2 Plaintiff was a passenger in a vehicle which he claims was subjected to a traffic stop 3 that was “unlawful and did not rest on a reasonable suspicion a violation occurred and did 4 not support a suspicion the vehicle or occupants were engaged in criminal activity.” Am. 5 Compl. at 4. Plaintiff claims Deputy Dennis Gagnon stated at the preliminary hearing that 6 he “pulled the vehicle over to investigate a violation of VC26708(a)(2),” which prohibits 7 window tinting on motor vehicles, but that he never issued a ticket for the tinted window. 8 Id. at 4-5. Plaintiff claims that Defendant Gagnon then prolonged the detention, violating 9 the Fourth Amendment, when he proceeded to question the passenger as well. Id. at 5. As 10 he approached the passenger’s side where Plaintiff was seated, Defendant Gagnon stated, 11 “Let me see your hands,” to which Plaintiff immediately complied. Id. at 6. Plaintiff 12 states that in his haste to remove his left hand from his left front pocket to comply, he 13 dislodged money from the pocket; he still managed to keep his hands and arms raised. Id. 14 Plaintiff claims that once he believed Defendant Gagnon had completed his observation, 15 he reached down to retrieve the dislodged money which had fallen between his left pocket 16 and the seat-belt holster. Id. At that point, Defendant Gagnon “aggressively 17 withdrew/drew and pointed his gun at/into plaintiff’s face from within 2-4 feet saying, 18 ‘Keep your hands up’ and ‘I’ll shoot.’” Id. Plaintiff complied. Id. As Defendant asked 19 him his full name, Plaintiff began to experience a “mini-mal seizure,” of which he has a 20 medical history. Id. Plaintiff states that when he “stalled,” Defendant Gagnon then 21 opened the car door at gunpoint and seized Plaintiff by his forearm. Id. Plaintiff claims he 22 complied and tried to move “as he felt his life was at extreme risk”; he was placed facing 23 the car, told to place his hands behind his back, and was handcuffed. Id. Plaintiff claims 24 Defendant did not perform a pat-down but began an “invasive pocket search,” pulling out 25 cellphones, paper, and money. Id. After completing the pocket search, Plaintiff claims 26 Defendant Gagnon yanked on Plaintiff’s “hairpiece/wig pulling it off plaintiff’s head.” Id. 1 Defendant Gagnon drawing his gun and had been standing at the driver’s side with a clear 2 view of Plaintiff’s left side. Id. at 7. Plaintiff claims Defendant Taylor did not draw his 3 weapon or give any verbal orders to anyone, which he asserts indicates that Defendant 4 Gagnon’s conduct was unreasonable. Id. Plaintiff asserts that if Defendant Gagnon had 5 been worried about Plaintiff accessing a gun/weapon, then he would have alerted 6 Defendant Taylor to that fact and they would have secured the driver and performed a 7 search of Plaintiff’s seated area, which they did not. Id. Plaintiff claims Defendant 8 Gagnon committed excessive force which was unjustified under the circumstances, and 9 Defendant Taylor failed in his duty to protect to quell Defendant Gagnon’s unreasonable 10 actions. Id. at 8. 11 Plaintiff names as new Defendants Judge Marilyn Miles, Judge Dale Reinholtsen, 12 and Judge John Feeney and claims their decisions in the underlying criminal proceedings 13 were incorrect applications of state law. Id. at 9-10. Lastly, Plaintiff claims Humboldt 14 County is liable “for the abuse of the judiciary to unlawfully not honor instructive case 15 law/stare decisis quoted to each judge at each hearing.” Id. at 10. Plaintiff seeks damages, 16 and a “formal declaratory relief and reprimanding, and arrest” against the judges and 17 Defendant Gagnon. Id. at 3. 18 Liberally construed, Plaintiff’s allegations state the following cognizable claims 19 under the Fourth Amendment: (1) claims against Defendant Gagnon for excessive force, 20 see Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled on 21 other grounds by Graham v. Connor, 490 U.S. 386 (1989), and unlawful search and 22 detention, see Allen v. City of Portland, 73 F.3d 232, 235 (9th Cir. 1995); Franklin v. 23 Foxworth, 31 F.3d 873, 875 (9th Cir. 1994); and (2) against Defendant Taylor for failure to 24 intercede, see Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000). However, 25 the claims against newly named Defendants and Humboldt County must be dismissed as 26 explained below. 1 1. Judicial Immunity 2 Plaintiff’s action for damages against the three state judges newly named in this 3 action must be dismissed because state judges are absolutely immune from civil liability 4 for damages for acts performed in their judicial capacity. See Pierson v. Ray, 386 U.S. 5 547, 553-55 (1967) (applying judicial immunity to actions under 42 U.S.C. § 1983). 6 Judicial immunity is an immunity from suit for damages, not just from an ultimate 7 assessment of damages. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Whether an 8 act by a judge is a judicial one relates to (1) the nature and function of the act and not the 9 act itself, i.e., whether it is a function normally performed by a judge, and to (2) the 10 expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. 11 Stump v. Sparkman, 435 U.S. 349, 362 (1978). Here, Plaintiff is challenging the judges’ 12 respective decisions in the subsequent criminal proceedings following his arrest. Am. 13 Compl. at 9-10. These decisions were clearly part of the nature and function of their roles 14 as judges and Plaintiff was dealing with the judges in their judicial capacity. It matters not 15 that their decisions may have been erroneous, as Plaintiff alleges. As long as the judge has 16 jurisdiction to perform the “general act” in question, he or she is immune however 17 erroneous the act may have been, however injurious the consequences of the act may have 18 been, and irrespective of the judge’s claimed motivation. See Harvey v. Waldron, 210 19 F.3d 1008, 1012 (9th Cir. 2000). Accordingly, this suit for damages against Defendants 20 Judges Miles, Reinholtsen, and Feeney for actions performed in their judicial capacity is 21 DISMISSED as barred by judicial immunity. 22 2. Monell Claim 23 Plaintiff claims Humboldt County (“County”) is liable “for the abuse of the 24 judiciary to unlawfully not honor instructive case law/stare decisis quoted to each judge at 25 each hearing.” Am. Compl. at 10. Liberally construed, Plaintiff may be attempting to 26 state a claim against the County under Monell v. Dep't of Social Servs., 436 U.S. 658 1 are not employees of the County but rather elected state constitutional officers, and the 2 Superior Court in which they serve is a State agency, not a County entity. See Greater 3 L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir.1987) (“The official 4 name of the court is the Superior Court of the State of California; its geographical location 5 within any particular county cannot change the fact that the court derives its power from 6 the State and is ultimately regulated by the State.”) Accordingly, there is no basis for 7 asserting a Monell claim against the County for the acts of state constitutional officers. 8 II. Motion to Dismiss 9 A. Standard of Review 10 Failure to state a claim upon which relief can be granted is grounds for dismissal 11 under Rule 12(b)(6). Dismissal for failure to state a claim is a ruling on a question of law. 12 See Parks School of Business, Inc., v. Symington, 51 F.3d 1480, 1483 (9th Cir. 1995). 13 “The issue is not whether plaintiff will ultimately prevail, but whether he is entitled to 14 offer evidence to support his claim.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th 15 Cir. 1987). 16 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 17 detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds of his 18 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 19 recitation of the elements of a cause of action will not do.... Factual allegations must be 20 enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. 21 Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted). A motion to dismiss should be 22 granted if the complaint does not proffer “enough facts to state a claim for relief that is 23 plausible on its face.” Id. at 570. To state a claim that is plausible on its face, a plaintiff 24 must allege facts that “allow[] the court to draw the reasonable inference that the defendant 25 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). From 26 these decisions, the following “two principles” arise: “First to be entitled to the 1 elements of a cause of action but must contain sufficient allegations of underlying facts to 2 give fair notice and to enable the opposing party to defend itself effectively. Second, the 3 factual allegations that are taken as true must plausibly suggest an entitlement to relief, 4 such that it is not unfair to require the opposing party to be subjected to the expense of 5 discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 6 Review is limited to the contents of the complaint, see Clegg v. Cult Awareness 7 Network, 18 F.3d 752, 754-55 (9th Cir. 1994), including documents physically attached to 8 the complaint or documents the complaint necessarily relies on and whose authenticity is 9 not contested. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), overruled 10 on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). In 11 addition, the court may take judicial notice of facts that are not subject to reasonable 12 dispute. See id. at 689 (discussing Fed. R. Evid. 201(b)). Thus, the two exceptions to the 13 prohibition of considering material outside the pleadings when assessing the sufficiency of 14 the complaint are the incorporation by reference and judicial notice doctrines. Khoja v. 15 Orexigen Therapeutics, 899 F.3d 988, 998 (9th Cir. 2018). 16 Defendants move for dismissal on the grounds that the claims for excessive force, 17 unlawful search, and unlawful detention are time-barred and for failure to plead sufficient 18 facts to support a claim for relief, as well as dismissal of newly named defendants. (Mot. 19 at 2.) They request judicial notice of the preliminary examination of Defendants Gagnon 20 and Taylor in the underlying criminal proceedings. Dkt. No. 25-1, hereinafter “RJN.” The 21 request is GRANTED. See Lee, 250 F.3d at 689. 22 In its initial review, the Court dismissed the claims against newly named defendants 23 and the County as discussed above. See supra at 4-5. Accordingly, the Court need only 24 review Defendants’ arguments with respect to the Fourth Amendment claims against 25 Defendants Gagnon and Taylor. 26 B. Timeliness 1 that of the forum state’s statute of limitations for personal injury torts. See Wilson v. 2 Garcia, 471 U.S. 261, 276 (1985), superseded by statute on other grounds as stated in 3 Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 377-78 (2004); TwoRivers v. Lewis, 174 4 F.3d 987, 991 (9th Cir. 1999); Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 5 1994). In California, the general residual statute of limitations for personal injury actions 6 is the two-year period set forth at California Civil Procedure Code § 335.1 and is the 7 applicable statute in § 1983 actions. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 8 2004); see also Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999) (limitations period for 9 filing § 1983 action in California governed by residual limitations period for personal 10 injury actions in California, which was then one year and was codified in Cal. Civ. Proc. 11 Code § 340(3)); Cal. Civ. Proc. Code § 335.1 (current codification of residual limitations 12 period, which is now two years; enacted in 2002). 13 California Civil Procedure Code section 352.1 recognizes imprisonment as a 14 disability that tolls the statute of limitations when a person is “imprisoned on a criminal 15 charge, or in execution under the sentence of a criminal court for a term of less than for 16 life.” Cal. Civ. Proc. Code § 352.1(a). However, tolling is available only to convicted 17 persons incarcerated in a prison, and not to pretrial detainees. See Austin v. Medicis, 21 18 Cal. App. 5th 577, 589-97 (2018) (concluding that persons in pretrial custody are not 19 “imprisoned on a criminal charge,” and so not entitled to tolling), reh’g denied (Apr. 11, 20 2018), review denied (June 13, 2018). Here, the underlying incident involves an arrest 21 subsequent to a traffic stop. Plaintiff was a pretrial detainee at the time he filed this action, 22 and not imprisoned on a criminal charge. Therefore, he is not entitled to tolling under § 23 352.1(a). Id. 24 It is federal law that determines when a cause of action accrues, and the statute of 25 limitations begins to run in a § 1983 action. McDonough v. Smith, 139 S. Ct. 2149, 2156 26 (2019) (though federal courts often refer to common law tort principles when deciding 1 § 1983 claims); Wallace v. Kato, 549 U.S. 384, 388 (2007); Belanus v. Clark, 796 F.3d 2 1021, 1025 (9th Cir. 2015); Elliott, 25 F.3d at 801-02. Under federal law, a claim 3 generally accrues when the plaintiff knows or has reason to know of the injury which is the 4 basis of the action. See TwoRivers, 174 F.3d at 991-92; Elliott, 25 F.3d at 802. “The 5 discovery rule requires the plaintiff to be diligent in discovering the critical facts of the 6 case.” Klein v. City of Beverly Hills, 865 F.3d 1276, 1278 (9th Cir. 2017) (per curiam). 7 “A cause of action accrues ‘even if the full extent of the injury is not then known.’” Gregg 8 v. State of Hawaii DPS, 870 F.3d 883, 887 (9th Cir. 2017) (quoting Wallace, 549 U.S. at 9 39)). Accrual starts when the plaintiff can know that the injury was caused by defendants’ 10 actions. Id. at 889 (finding accrual when plaintiff knew, or could know through reasonable 11 diligence, that her emotional discomfort was caused by defendant’s improper conduct in 12 therapy). 13 Defendants state that the underlying incident happened on August 26, 2016. Mot. at 14 3. Plaintiff does not dispute this fact in opposition. Dkt. No. 26. Furthermore, Defendants 15 assert in reply that at the earliest this action was filed on November 5, 2018, which is still 16 more than two years after the August 26, 2016 incident. Dkt. No. 29 at 2. Defendants also 17 assert that Plaintiff knew or had reason to know of the facts giving rise to his claims on the 18 date of the incident. Id. at 9-10. In the amended complaint, Plaintiff cites to Defendant 19 Gagnon’s testimony at the preliminary hearing to support his allegation that Defendant had 20 no intention of issuing a ticket for the traffic offense that initiated the stop, i.e., the window 21 tint, and therefore lacked probable cause, and that he unlawfully prolonged the detention. 22 Am. Compl. at 5. The Court inferred from this allegation that Plaintiff may not have 23 known about the facts giving rise to an unlawful detention claim until the preliminary 24 hearing. Dkt. No. 21 at 4. However, Defendants assert in their motion that it matters not 25 whether Defendant Gagnon actually issued a ticket for the traffic offense. Mot. at 10. 26 Defendants point out that Defendant Gagnon specifically testified that he pulled the 1 Id., citing RJN, ¶ 2, Ex. A at 7:27-10:4; see supra at 2. In opposition, Plaintiff makes no 2 argument to dispute the untimeliness of this action. Dkt. No. 26. Rather, he relies on what 3 the preliminary hearing allegedly reveals about Defendant Gagnon’s intent and lack of 4 reasonable suspicion during the incident. Id. at 5-9. But for the purposes of accrual, it 5 only matters when plaintiff knew or had reason to know of the injury which is the basis of 6 the action. See TwoRivers, 174 F.3d at 991- 92 (emphasis added). Based on his 7 allegations, Plaintiff knew or had reason to know at the time of the incident that Defendant 8 Gagnon used excessive force and that there was no basis for the traffic stop, especially if 9 he knew the windows were in fact not tinted, and that it was unnecessarily prolonged 10 because Plaintiff did not believe that Defendant Gagnon had any valid reason to speak to 11 him. For the same reason, Plaintiff knew or had reason to know at the time that any 12 subsequent search was unreasonable. Therefore, the cause of action for his Fourth 13 Amendment claims accrued on August 26, 2016, such that Plaintiff had until August 26, 14 2018, to file a timely action. See, e.g., Belanus, 796 F.3d at 1026 (cause of action for 15 illegal search and seizure accrues when the wrongful act occurs, even if person does not 16 know at that time the search was warrantless). He did not file this action until months 17 later, i.e., November 5, 2018. Accordingly, all the Fourth Amendment claims based on the 18 August 26, 2016 incident, i.e., excessive force, unlawful search and detention, and failure 19 to intercede, must be dismissed as untimely.2 20 21 CONCLUSION 22 For the reasons discussed above, the Court orders as follows: 23 Based on an initial review, Plaintiff’s damage claims against Defendants Judge 24 Marilyn Miles, Judge Dale Reinholtsen, and Judge John Feeney are DISMISSED as 25

26 2 Because all the Fourth Amendment claims are untimely, the Court need not address 1 || barred by judicial immunity. 28 U.S.C. § 1915A(b)(1),(2). Plaintiff's claim against 2 || Humboldt County is also DISMISSED for failure to state a claim. 3 Defendants’ motion to dismiss as untimely the Fourth Amendment claims for 4 || excessive force, unlawful search and detention, and failure to intercede is GRANTED. 5 || Cal. Civ. Proc. Code § 335.1. All the Fourth Amendment claims against Defendants 6 || Dennis Gagnon and Jesse Taylor are DISMISSED with prejudice. 7 All claims and defendants have been dismissed from this action. The Clerk shall 8 || enter judgment accordingly and close the file. 9 This order terminates Docket No. 25. 10 IT IS SO ORDERED 11 || Dated: _March 30, 2020_ bot flour homutn! BETH LABSON FREEMAN United States District Judge 13 14 o 15 16

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Oo Z 18 19 20 21 22 23 24 25 Order Screening Am. Compl; Granting MTD PRO-SE\BLF\CR.18\0762 1Silverman_screen.am.compl&grant-mtd 26 27