Tennyson v. County of Sacramento

• Court: District Court, E.D. California
• Decided: May 26, 2021
• Docket: 2:19-cv-00429
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Tina Tennyson, et al., No. 2:19-cv-00429-KJM-EFB 12 Plaintiffs, ORDER 13 Vv. 14 County of Sacramento, et al., 15 Defendants. 16 17 In this case, plaintiffs allege several Sacramento County Sheriff's Deputies arrested, 18 | assaulted, stalked and harassed a family for no good reason. The family sued under 42 U.S.C. 19 | § 1983 and California law. The County and the deputies now move to dismiss. For the most part, 20 | the complaint’s factual allegations suffice to permit an inference of the defendants’ liability. To 21 | the extent the complaint falls short, more particular factual allegations could close the gap, with a 22 | few exceptions. The motion is thus denied in part and granted in part with leave to amend, as 23 | explained below. 24 | 1. ALLEGATIONS 25 The plaintiffs are Tina Tennyson and her sons Dominic and Devon. Second Am. Compl. 26 | (SAC) 44, ECF No. 25. This order refers to them by their first names for clarity without 27 | intending undue informality. The court assumes at this stage that plaintiffs’ allegations are true 28 | ////

1 | and considers those allegations in the light most favorable to their claims. See Ashcroft v. □□□□□□ 2 | U.S. 662, 678 (2009). 3 Before the events that led to this lawsuit, Devon was a defendant in a juvenile prosecution. 4 | SAC ¥ 24. The case was dismissed for lack of evidence. Jd. Despite the dismissal, County 5 | officers retained his booking photo and treated him with suspicion. See id. 6 A few years ago, Dominic and Devon were driving near the family’s home in North 7 | Highlands when eight Sheriff's deputies surrounded their car, aiming their guns and forcing the 8 | cartoastop. Jd. §§] 26-28. The deputies then ordered the two out of the car and onto the ground 9 | without explanation. Jd. | 28. They arrested Dominic, put him in handcuffs, and sat him in a 10 | police car for the next few hours. Jd. §] 29-30. They also arrested Devon, twisting his arms 11 | forcefully behind him, forcing him to the ground, and standing on his back. Jd. § 32. The 12 | officers’ harsh treatment exacerbated Devon’s existing back injury, which had previously 13 | required surgery, and which prevents him from driving, working and caring for himself. See id. 14 | He told them about his injury, but the officers continued to handle him roughly and offered no 15 | treatment. See id. They then left him in a car for several hours. See id. § 33. 16 Tina was at home when this happened. Jd. § 27. After arresting Dominic and Devon, the 17 | same eight deputies came to the family’s home and forced their way in without a warrant, 18 | claiming they were searching for someone. See id. § 35. The officers ransacked the house for the 19 | next three hours or more, pointing guns at Tina, screaming insults and obscenities, and breaking 20 | doors, curtains, a bed and a table. See id. 33-37. They told Tina to stay in the home and 21 | refused her pleas to use the restroom, which caused her to soil herself. Jd. § 37. 22 The memories of the arrest and search, the deputies’ harsh treatment and the pointed guns 23 | still cause Tina, Dominic, and Devon anxiety today. See id. JJ 31, 34, 38. 24 About a month after this first search and the arrests, two different deputies pulled Devon 25 | over for no reason. Jd. § 40. They asked him whether he was on probation or parole and whether 26 | he had anything in the car, and they said he had no choice but to answer their questions. Jd. § 41. 27 | He invoked his right to remain silent. Jd. The deputies then ordered him out of his car, arrested 28 | him, and sat him in their car. Jd. § 42. Several more officers then arrived and searched Devon’s

1 car with neither a warrant nor probable cause. Id. ¶¶ 42–43. They found nothing, but destroyed 2 the speakers and an amplifier in the car. Id. ¶¶ 43–44. 3 Devon was stopped a few days later by an undercover police officer under the pretense of 4 speeding and driving without a front license plate. See id. ¶¶ 46–47. The officer asked Devon 5 again whether he was under probation or on parole and again arrested him. Id. ¶ 47. 6 Tina and Devon had another police encounter a few weeks later. See id. ¶¶ 48–49. They 7 were leaving an appointment for a social services exam when officers in two cars boxed them in 8 and prevented them from making a U-turn, then followed them before parking and watching them 9 from across the street. See id. ¶¶ 48–51. 10 Devon was stopped again for no reason a few days later while he was driving home from 11 work. See id. ¶¶ 52–53. The officer asked whether he was on probation or parole. Id. ¶ 54. 12 Devon said he was not. Id. The officer looked at him incredulously and seemed to be looking for 13 something in Devon’s car, but eventually let him go. See id. 14 Officers followed Devon again the next day while he was riding his motorcycle. See id. 15 ¶¶ 55–56. This was the fifth encounter after deputies searched the family’s home. 16 Tina, Dominic and Devon filed this lawsuit a few months after the incident during which 17 police followed Devon on his motorcycle. See Compl., ECF No. 1. They asserted several 18 constitutional claims based on 42 U.S.C. § 1983 against the County, the Sheriff’s Department, the 19 Sheriff, and several unnamed individual officers. They also asserted claims under the Americans 20 with Disabilities Act and California law. See generally id. 21 Two days after the Tennysons filed this case, officers made a pretextual traffic stop based 22 on Devon’s not having a front license plate. See id. ¶¶ 58–60. His partner was with him in the 23 car. See id. ¶ 58. She was pregnant with their child at the time. See id. Devon explained to the 24 officers that he had only recently bought the car, so the plates had not yet arrived. Id. ¶ 59. The 25 officers responded that they were actually investigating a report that Devon had been seen with a 26 gun a month ago. Id. ¶ 60. They arrested and handcuffed him in front of his girlfriend. Id. The 27 stress caused her premature contractions, and she was hospitalized. Id. Tina was called to the 28 ///// 1 scene, and after she arrived, Devon was released without explanation. Id. ¶ 61. The officers 2 laughed and mocked the family as they left. Id. 3 The defendants moved to dismiss the lawsuit a few weeks after it was filed. See Mot. 4 Dismiss, ECF No. 8. But before the motion was briefed, Devon was arrested and handcuffed in 5 the Tennysons’ home in response to a call about a domestic dispute. See id. ¶ 62. Officers held 6 Devon in a car for an hour and half without explanation before booking him at the Sacramento 7 County Jail. See id. ¶¶ 63–64. He told jail staff about his back problems and asked for a mat to 8 sleep on, but they ignored him. Id. ¶ 64. The County kept him in the jail for four days. Id. He 9 was never questioned. Id. ¶ 63. He was never charged. Id. ¶ 65. 10 The Tennysons amended their complaint to include allegations about Devon’s most recent 11 arrest and incarceration, ECF No. 10, and the County again moved to dismiss, ECF No. 14. The 12 court granted the motion in part. See Prev. Order, ECF No. 24. The court dismissed the § 1983 13 claims against the individual officers, with leave to amend, because the officers’ identities were 14 unknown at the time, and the parties had agreed to conduct discovery to obtain their names. See 15 id. at 4. The court dismissed the § 1983 claim against the Sheriff in his personal capacity with 16 leave to amend because the Tennysons did not allege the Sheriff was personally involved in or 17 knew about the alleged harassment. See id. at 5–7. The court dismissed the claim against the 18 Sheriff in his official capacity without leave to amend because that claim was duplicative of the 19 claims against the Sheriff’s Department and the County itself. See id. at 9–10. The court 20 dismissed the § 1983 claim against the Sheriff’s Department and the County with leave to amend 21 because it had dismissed the underlying constitutional claims to allow the individual officers to be 22 identified, as described above. See id. at 11. The court also noted that if the amended complaint 23 included claims against the Sheriff’s Department and County, the complaint “could benefit from a 24 greater level of particularity” about “which theory or theories of Monell liability” the Tennysons 25 were pursuing. See id. (citing Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005)). 26 The court dismissed the ADA and Rehabilitation Act claims because Devon did not explain the 27 basis of his claim that he had a disability. See id. at 7–9. Finally, the court dismissed the state 28 ///// 1 law claims with leave to amend because it had dismissed the federal claims and the parties were 2 not diverse for jurisdictional purposes. See id. at 11–12 (citing 28 U.S.C. § 1367(c)(3)). 3 The Tennysons amended their complaint as the court permitted; the case is thus 4 proceeding on the second amended complaint, which includes the following claims: 5 1. Excessive force in violation of the Fourth Amendment under § 1983 (against all 6 defendants), SAC ¶¶ 74–79; 7 2. False arrest or imprisonment in violation of the Fourth Amendment under § 1983 8 (against the individual officers), id. ¶¶ 80–84;1 9 3. Unreasonable entry and search in violation of the Fourth Amendment and § 1983 10 (against the individual officers), id. ¶¶ 85–89; 11 4. Denial of the right to familial association under the Fourteenth Amendment and 12 §1983 (against the individual officers), id. ¶¶ 90–94; 13 5. Denial of the right to familial association under the First Amendment and § 1983 14 (against the individual officers), id. ¶¶ 95–99; 15 6. Excessive force in violation of the California Constitution and Government Code 16 (against all defendants), id. ¶¶ 100–06; 17 7. False arrest and imprisonment in violation of the California Constitution and 18 Government Code (against all defendants), id. ¶¶ 107–12; 19 8. Unreasonable entry and search in violation of the California Constitution and 20 Government Code (against all defendants), id. ¶¶ 113–18; 21 9. Failure to discharge a mandatory duty in violation of the California Government 22 Code and Code of Civil Procedure (against the Sheriff’s Department and County), 23 id. ¶¶ 119–22; 24 10.Assault and battery (against all defendants), id. ¶¶ 123–28; 25 11.Trespass (against all defendants), id. ¶¶ 129–34; 1 The fifteen individual officers are Chad Campbell, Jose Lemus, Nathan Burnette, Scott Puffer, Paul Pfeifer, Michael French, William Griggs, Brian Santin, Hector Chavez, U.A. Dominguez, Vy Suon, Renny Rojo, Le Coonce, M. Keegan, and J. Wilhelm. See SAC ¶¶ 9–23. 1 12.Intentional infliction of emotional distress (against all defendants), id. ¶¶ 135–40; 2 13.Negligence (against all defendants), id. ¶¶ 141–47; 3 14.Wrongful denial of medical treatment in violation of the Fourteenth Amendment 4 and § 1983 (against the individual officers), id. ¶¶ 148–52; 5 15.Violations of the ADA (against the Sheriff’s Department only), id. ¶¶ 153–58. 6 16.Violations of the Rehabilitation Act (against the Sheriff’s Department only), id. 7 ¶¶ 159–64. 8 17.Violation of California’s Tom Bane Civil Rights Act (against all defendants), id. 9 ¶¶ 165–98. 10 The defendants move to dismiss at least some portion of all but two of these claims under 11 Rule 12(b)(6); they do not challenge the eleventh claim for trespass and the thirteenth claim for 12 negligence. The motion is fully briefed and the court submitted it without a hearing. See Mot., 13 ECF No. 29; Opp’n, ECF No. 32; Reply, ECF No. 34; Minute Order, ECF No. 33. 14 II. ANALYSIS 15 The court summarized the applicable legal standard in its previous order and need not 16 reiterate it here. See Prev. Order at 3. 17 Two of the defendants’ broader arguments are best addressed at the outset. First, 18 defendants move to dismiss various claims that officers are liable because they did not intercede 19 to prevent another officer from violating the law. See Mot. at 7–8. The Tennysons do not 20 respond to that argument. Arguments not included in an opposition are waived. See S.G. by & 21 through Morgan v. El Dorado Union High Sch. Dist., No. 18-00685, 2019 WL 2615752, at *4 22 (E.D. Cal. June 26, 2019); see also E.D. Cal. L.R. 230(c) (providing that absence of opposition 23 may be construed as waiver). These claims are thus dismissed with leave to amend. 24 Second, the defendants argue that several of the Tennysons’ Fourteenth Amendment 25 claims should be dismissed because another amendment “provides an explicit textual source of 26 constitutional protection.” Mot. at 7; see also, e.g., SAC at 12–13 (excessive force claim under 27 the Fourth and Fourteenth amendments); id. at 17–18 (right of association claim under the First 28 and Fourteenth amendments). As the Tennysons correctly explain, however, the Supreme Court 1 has incorporated the protections of the First and Fourth amendments against the states through the 2 Fourteenth Amendment, see Opp’n at 7, and “courts have acknowledged that it is acceptable to 3 reference the Fourteenth Amendment as a conduit for the Fourth Amendment.” Holcomb v. 4 Ramar, No. 13-1102, 2013 WL 5947621, at *3 (E.D. Cal. Nov. 4, 2013). The court therefore 5 interprets the disputed references to the Fourteenth Amendment as explanations of the 6 complaint’s legal theories, not as separate constitutional claims, and turns now to the complaint’s 7 discrete claims. 8 A. Excessive Force (Claims 1, 6 and 10) 9 The Tennysons assert a federal constitutional claim of excessive force under § 1983 10 against all of the defendants, including the County, see SAC ¶¶ 74–79, and similar claims of 11 excessive force, assault, and battery under California law, see id. ¶¶ 100–06, 123–28. The court 12 begins with the federal claims against the County. 13 Municipal governments can be liable for “their own illegal acts” under § 1983 and Monell 14 v. Department of Social Services, 436 U.S. 658 (1978). Pembaur v. Cincinnati, 475 U.S. 469, 15 479 (1986) (emphasis omitted). “In order to establish municipal liability, a plaintiff must show 16 that a ‘policy or custom’ led to the plaintiff’s injury.” Castro v. County of Los Angeles, 833 F.3d 17 1060, 1073 (9th Cir. 2016) (en banc) (quoting Monell, 436 U.S. at 694). For a policy to be 18 unconstitutional, it must “reflect[] deliberate indifference” to constitutional rights. Id. (quoting 19 City of Canton v. Harris, 489 U.S. 378, 392 (1989)). 20 Plaintiffs who assert a municipal government is liable under § 1983 can rely on several 21 different legal theories. A plaintiff can show the municipality had a “longstanding practice or 22 custom” or “standard operating procedure.” Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th 23 Cir. 2005) (quoting Ulrich v. City & Cty. of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002)). 24 A policy can similarly be “inferred from widespread practices or evidence of repeated 25 constitutional violations for which the errant municipal officers were not discharged or 26 reprimanded.” Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011) (quoting 27 Nadell v. Las Vegas Metro. Police Dep’t, 268 F.3d 924, 929 (9th Cir. 2001), abrogated on other 28 grounds as recognized in Beck v. City of Upland, 527 F.3d 853 n.8 (9th Cir. 2008)). Acts of 1 omission might also amount to an official policy. Clouthier v. Cty. of Contra Costa, 591 F.3d 2 1232, 1249 (9th Cir. 2010), overruled in part on other grounds by Castro, 833 F.3d 1060. A 3 county’s deliberate decision not to train its employees, for example, might amount to 4 policymaking by omission. See id. at 1249–50. A plaintiff can also show a local government had 5 a policy by proving that the person who committed the alleged wrong was a “decision-making 6 official” with “final policymaking authority whose edits or acts may fairly be said to represent 7 official policy in the area of decision.” Menotti, 409 F.3d at 1147 (quoting Ulrich, 308 F.3d at 8 985). Similarly, if a person with final policymaking authority delegated that authority to a 9 subordinate or ratified the subordinate’s decision, then the decision to delegate or ratify is also a 10 “policy.” See Clouthier, 591 F.3d at 1250. 11 The Tennysons explain their theory of the County’s liability in terms of affirmative 12 policies and delegation, but their claims actually rest on a theory of omissions, namely poor 13 training and a blind eye toward excessive force. See Opp’n at 6–7. They allege essentially that 14 the County and Sheriff’s Department maintained a policy of indifference toward abuse by its 15 officers. See SAC ¶¶ 69–72, 77. But their complaint describes only one instance in which 16 officers used excessive force: when they pointed guns at Devon and Dominic, twisted Devon’s 17 arms painfully behind his back, and stood on Devon after forcing him to the ground. See id. ¶ 32. 18 They do not allege the Sheriff or any supervising officers knew about this assault or ignored other 19 abuses. They make only generic claims of “multiple past instances of use of excessive force and 20 unreasonable force by law enforcement officers.” Id. ¶ 70. Such generalized allegations do not 21 support a claim of municipal liability under § 1983. See AE ex rel. Hernandez v. Cty. of Tulare, 22 666 F.3d 631, 637–38 & n.5 (9th Cir. 2012) (rejecting similarly generic allegations of a deficient 23 policy); cf. McCoy v. City of Vallejo, No. 19-1191, 2020 WL 374356, at *2–4 (E.D. Cal. Jan. 23, 24 2020) (denying motion to dismiss claims of excessive force under Monell because complaint 25 identified several similar instances of excessive force by the defendant’s officers). This shortfall 26 might be corrected by adding more detailed factual allegations to the complaint, if plaintiffs are 27 able. For that reason, the § 1983 excessive force claim against the County is dismissed with leave 28 to amend. See Hernandez, 666 F.3d at 367–68. 1 As for the § 1983 claims against the individual defendants, the Tennysons name fifteen 2 officers in their complaint. SAC ¶ 77. Seven of those officers, however, were not at the scene of 3 the forceful arrest described above, and that arrest is the only alleged instance of excessive force. 4 See SAC ¶ 28. A Fourth Amendment claim of excessive force cannot succeed against a 5 defendant who did not use any force at all. See Graham v. Connor, 490 U.S. 386, 395–97 (1989). 6 The claims of excessive force against the officers not identified in paragraph twenty-eight are 7 thus dismissed, but with leave to amend if possible. 8 The allegations against the other eight officers, by contrast, do state a claim of 9 unconstitutionally excessive force. “Determining whether the force used to effect a particular 10 seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature 11 and quality of the intrusion on the individual’s Fourth Amendment interests’ against the 12 countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (quoting Tennessee v. 13 Garner, 471 U.S. 1, 8 (1985)). Evaluating the “reasonableness” of force “requires careful 14 attention to the facts and circumstances of each particular case.” Id. These circumstances include 15 “the severity of the crime at issue, whether the suspect[s] pose[] an immediate threat to the safety 16 of the officers or others, and whether [they are] actively resisting arrest or attempting to evade 17 arrest by flight.” Id. At this early stage, a claim may proceed if the complaint “plausibly 18 suggest[s] an entitlement to relief” and contains “sufficient allegations of underlying facts to give 19 [the officers] fair notice” of the claim against them so that they can prepare a defense. Starr v. 20 Baca, 652 F.3d 1202, 1216 (2011). 21 Here, the Tennysons allege the eight named deputies threatened deadly force without 22 provocation in circumstances that suggested no risk of a chase, no danger and no crime. See SAC 23 ¶¶ 26–28. These allegations suffice to state a claim of unconstitutional excessive force. They are 24 comparable, for example, to the allegations the Ninth Circuit found sufficient in Robinson v. 25 Solano County, a case in which officers had pointed guns at an unarmed, outnumbered man 26 suspected of a minor crime approaching them peacefully. See 278 F.3d 1007, 1013–15 (9th Cir. 27 2002). The Tennysons’ allegations also parallel the evidence in Thompson v. Rahr, a case in 28 which an officer used excessive force by pointing a gun at a man’s head and threatened to shoot 1 even though the officer suspected only minor crimes and even though the circumstances 2 suggested no danger or risk of flight. 885 F.3d 582, 586–87 (9th Cir.), cert. denied sub nom. 3 Thompson v. Copeland, 139 S. Ct. 381 (2018), reh’g denied, 139 S. Ct. 1244 (2019). The court 4 thus denies the motion as to the § 1983 excessive force claims against the eight officers listed in 5 paragraph twenty-eight. 6 As noted above, the Tennysons also assert excessive force claims against all of the 7 defendants under California law. The officers’ arguments about these state law claims are 8 derivative of their arguments regarding the federal excessive force claim, see Mot. at 8–9, 16, and 9 the California Constitution “impose[s] higher standards for searches and seizures than compelled 10 by the federal Constitution,” People v. Brisendine, 13 Cal. 3d 528, 549 (1975), superseded by 11 statute on other grounds as noted in In re Lance W., 37 Cal. 3d 873, 879 (1985). Under 12 California law, public entities are also “liable for injury proximately caused by an act of omission 13 of an employee of the public entity within the scope of his employment . . . .” Cal. Gov’t Code 14 § 815.2(a); see also id. § 820(a) (“Except as otherwise provided by statute, . . . a public employee 15 is liable for injury caused by his act or omission to the same extent as a private person.”). The 16 motion to dismiss the state law excessive force, assault and battery claims against the fifteen 17 officers is thus denied in part and granted in part with leave to amend in parallel with the motion 18 to dismiss the federal claims. The Tennysons’ state law excessive force claim against the County 19 may proceed to the same extent as the state-law claims against the officers. 20 B. Unlawful Detentions and Searches (Claims 2, 3, 7 and 8) 21 The defendants next move to dismiss some, but not all, of the Tennysons’ claims of 22 unlawful arrests and searches, which the Tennysons assert under both federal and state law. 23 Starting with the unlawful arrest claims, the defendants do not dispute that the complaint 24 identifies three allegedly unlawful arrests. See Mot. at 9–10. All fifteen of the officers named as 25 defendants participated in those three arrests. See SAC ¶ 28 (naming Officers Campbell, Lemus, 26 Burnette, Puffer, Pfeifer, French, Griggs and Santin); id. ¶ 40 (naming Officers Chavez and 27 Dominguez); id. ¶ 63 (naming Officers Suon, Rojo, Coonce, Keegan and Wilhelm). The 28 Tennysons’ allegations about these three arrests also make out viable claims under the Fourth 1 Amendment and California law; they allege their lengthy and warrantless detentions were 2 supported by neither cause nor suspicion. See Tekle v. United States, 511 F.3d 839, 854 (9th Cir. 3 2007) (explaining what is necessary to state claim for false arrest or imprisonment under 4 California law); Dubner v. City and County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001) 5 (“A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment 6 provided that the arrest was made without probable cause or other justification.”). The court 7 denies the motion with respect to the claims of unlawful arrests. The court need not and does not 8 consider whether the Tennysons’ allegations about the many other arrests and detentions 9 described in their complaint could support their claims independently. 10 As for plaintiffs’ allegations of unlawful searches, the officers argue that according to the 11 complaint, seven of them did not conduct any searches. See Mot. at 10. They are partly correct. 12 The complaint includes allegations of unlawful searches by ten officers. See SAC ¶¶ 35, 43. But 13 the Tennysons do not allege that Officers Suon, Rojo, Coonce, Keegan or Wilhelm conducted any 14 searches. See id. ¶¶ 62–63. Nor do they object to this portion of the defendants’ motion. The 15 court thus dismisses the unlawful search claims against Officers Suon, Rojo, Coonce, Keegan and 16 Wilhelm, with leave to amend. See S.G., 2019 WL 2615752, at *4 (holding that arguments not 17 presented in an opposition are waived); E.D. Cal. L.R. 230(c) (“A failure to file a timely 18 opposition may also be construed by the Court as a non-opposition to the motion.”). 19 C. Familial Association and Right of Association (Claims 4 and 5) 20 The defendants next move to dismiss the Tennysons’ claims that officers wrongly 21 interfered with their family relationships in violation of the First and Fourteenth amendments. 22 Despite their distinct constitutional derivations, these claims are similar. 23 The Due Process Clause of the Fourteenth Amendment protects parents’ “liberty interest 24 in the companionship and society of their children.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th 25 Cir. 2010). “To amount to a violation of substantive due process, however, the harmful conduct 26 must ‘shock the conscience’ or ‘offend the community’s sense of fair play and decency.’” 27 Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011) (alterations omitted) (quoting 28 Rochin v. California, 342 U.S. 165, 172–73 (1952)). Actions that “shock the conscience” are 1 “arbitrary,” Collins v. Harker Heights, 503 U.S. 115, 128 (1992), “egregious,” “deliberate” and 2 “unjustifiable by any government interest,” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846–49 3 (1998), “brutal” and “offensive,” Breithaupt v. Abram, 352 U.S. 432, 435 (1957); they deny rights 4 “implicit in the concept of ordered liberty,” Rochin, 342 U.S. at 169 (quoting Palko v. State of 5 Connecticut, 302 U.S. 319, 325 (1937)), and violate the “decencies of civilized conduct,” id. at 6 173. Whether a defendant’s conduct shocks the conscience turns on the facts of the particular 7 case. See Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 372 (9th Cir. 1998); Walsh 8 v. Tehachapi Unified Sch. Dist., 827 F. Supp. 2d 1107, 1119 (E.D. Cal. 2011). 9 The Supreme Court has also interpreted the First Amendment as protecting “the freedom 10 to enter into and carry on certain intimate or private relationships,” including “marriage, the 11 begetting and bearing of children, child rearing and education, and cohabitation with relatives.” 12 Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987) (citations 13 omitted); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 619–20 (1984). The foundation of this 14 protection is “the formation and preservation of certain kinds of highly personal relationships” as 15 a “sanctuary from unjustified interference by the State.” Roberts, 468 U.S. at 618. These 16 relationships “have played a critical role in the culture and traditions of the Nation by cultivating 17 and transmitting shared ideals and beliefs.” Id. at 618–19. Protecting them “safeguards the 18 ability independently to define one’s identity that is central to any concept of liberty.” Id. at 619. 19 Although the theoretical foundations of a First Amendment claim for interference with 20 family relationships are well understood, it is unclear what a plaintiff must plead and prove to 21 succeed in asserting such a claim. See Kaur v. City of Lodi, 263 F. Supp. 3d 947, 973 (E.D. Cal. 22 2017). But the First and Fourteenth amendments’ protections of family relationships often 23 overlap. That was true in Lee v. City of Los Angles, for example. See 250 F.3d 668, 685–86 (9th 24 Cir. 2001). There, the Ninth Circuit upheld the plaintiffs’ claims under both the First and 25 Fourteenth amendments without a separate analysis, citing decisions interpreting both 26 amendments. See id. That holding has led another judge of this court to conclude that claims 27 under both amendments “are measured by the same standard.” Kaur, 263 F. Supp. 3d at 973. 28 ///// 1 The parties here do not advocate the use of separate standards, and the court perceives no reason 2 to consider the claims separately. 3 The Tennysons’ family association claims are rooted in their allegations that officers 4 separated them from one another during searches and arrests and kept Devon in jail, away from 5 the family, for several days without questioning him or filing any charges. See Opp’n at 9–10. 6 They have cited no similar case in which family-association claims have succeeded, and the court 7 is aware of none. Viable claims have been founded on much more egregious wrongs and much 8 longer, or even permanent, separations. In Lee, for example, a disabled child was allegedly 9 mistaken for another person, falsely arrested, extradited and imprisoned, and his parents were 10 repeatedly misinformed of his whereabouts. See 250 F.3d at 685–86. And in Kelson v. City of 11 Springfield, a boy was left alone in the school bathroom with a gun after he showed the vice 12 principal a suicide note, and he committed suicide. 767 F.2d 651, 652–53 (9th Cir. 1985); see 13 also Cotta v. Cty. of Kings, 79 F. Supp. 3d 1148, 1177–79 (E.D. Cal. 2015) (collecting cases), 14 recons. in part on other grounds, No. 13-359, 2015 WL 521358 (E.D. Cal. Feb. 9, 2015). The 15 Tennysons’ allegations are more readily comparable to the unsuccessful claims in Rosenbaum v. 16 Washoe County, 663 F.3d 1071 (9th Cir. 2011) (per curiam). In that case, the circuit held that an 17 officer had not violated a family’s rights by handcuffing a man in front of his children, taking the 18 children to their mother, and telling them their father had done wrong and was going to jail. Id. at 19 1079–80. Despite the officer’s poor judgment, his conduct did not “come close” to shocking the 20 conscience in terms of the Fourteenth Amendment. Id. The same is true here, at least on the 21 Tennysons’ allegations as they currently stand. The court grants the motion to dismiss claims 22 four and five, with leave to amend if possible. 23 D. Denial of Medical Treatment (Claim 14) 24 Devon claims the County’s officers violated his Fourth Amendment rights when they did 25 not call for medical help after stepping on his injured back during his arrest. Officers must seek 26 “necessary medical attention” for detainees who are injured while they are being apprehended. 27 Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1099 (9th Cir. 2006) (quoting Maddox v. 28 City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir. 1986)). An officer can satisfy this obligation 1 by “summoning the necessary medical help” or “by taking the injured detainee to a hospital.” Id. 2 (quoting Maddox, 792 F.2d at 1415). It is not necessary for a plaintiff to allege that officers were 3 deliberately indifferent; detainees have a right to all care that is “objectively reasonable.” Id.; 4 accord, e.g., Estate of Cornejo ex rel. Solis v. Cty. of Los Angeles, 618 F. App’x 917, 920 (9th 5 Cir. 2015) (unpublished). 6 Here, Devon alleges he told officers he had a previous back injury, was in pain and 7 needed help. See SAC ¶ 32. He received no medical attention at all. These allegations, viewed 8 in the light most favorable to Devon’s claims, make out a plausible case of the officers’ liability 9 and put them on notice of his claims. The court denies the motion in this respect. 10 E. ADA and Rehabilitation Act (Claims 15 and 16) 11 The court summarized the elements of a claim under the ADA and Rehabilitation Act in 12 its previous order. See Prev. Order at 7–8. In short, to state a claim under the ADA or 13 Rehabilitation Act, Devon must allege (1) he had a disability; (2) he was otherwise qualified to 14 participate in or receive the benefit of the County’s services, programs or activities; (3) he was 15 either excluded from participation in or denied the benefits of the public entity’s services, 16 programs or activities or was otherwise discriminated against by the public entity; and (4) such 17 exclusion, denial of benefits or discrimination was by reason of his disability. See Vos v. City of 18 Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018), cert. denied sub nom. City of Newport 19 Beach, Cal. v. Vos, 139 S. Ct. 2613 (2019). 20 The court dismissed Devon’s ADA claim in its previous order because he did not allege 21 that he suffered from a condition that “substantially limit[ed]” one or more “major life activities.” 22 Prev. Order at 8 (quoting 42 U.S.C. § 12102(1)(A)). He now alleges his back injury sometimes 23 prevents him from driving, working and caring for himself. See SAC ¶ 32. Working and caring 24 for oneself are major life activities under the applicable regulations. See Prev. Order at 8–9 25 (quoting 42 U.S.C. § 1201(2)(A)). These allegations satisfy the first element of an ADA and 26 Rehabilitation Act claim. 27 The County contends otherwise. It argues Devon’s allegations are contradictory: he 28 alleges both (1) that his disability prevents him from driving and working and (2) that he was 1 pulled over while driving home from work. See Mot. at 14; see also, e.g., SAC ¶¶ 32, 52. These 2 allegations are not necessarily self-contradictory. It is plausible to infer that Devon’s injuries 3 prevent him from driving and working only intermittently. To succeed, then, the County must 4 show that intermittent limitations are by definition not “substantial” under the ADA and 5 Rehabilitation Act. The court declines to read that limitation into the statute, which must be 6 “construed in favor of broad coverage.” 42 U.S.C. § 12102(4)(A). An impairment may be a 7 “disability” under the ADA even if it does not completely or even “significantly or severely” 8 restrict a “major life activity.” Nunies v. HIE Holdings, Inc., 908 F.3d 428, 436 (9th Cir. 2018) 9 (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). Those who work through their severe pain may very well 10 be “disabled.” See id. 11 The complaint’s allegations satisfy the other elements of a claim under the ADA and 12 Rehabilitation Act as well. Devon alleges he told staff in the County jail that he had back pain 13 and needed a mat to sleep on, but they gave him no mat and made no other accommodations for 14 four days. SAC ¶ 64. The court denies the motion with respect to the ADA and Rehabilitation 15 Act claims. 16 The parties also dispute whether Devon can state a claim under the ADA or Rehabilitation 17 Act based on his allegations about officers stepping on him during the first arrest and detention. 18 See Mot. at 14–15; Opp’n at 12; Reply at 7–8. The court need not resolve this dispute to resolve 19 the County’s motion and declines to do so. 20 F. Failure to Discharge a Duty (Claim 9) 21 The California Government Code makes public entities liable for injuries proximately 22 caused by their failures to discharge certain “mandatory” duties. Cal. Gov’t Code § 815.6. The 23 duty must be “imposed by an enactment that is designed to protect against the risk of [that] 24 particular kind of injury.” Id. But the entity is not liable if it “establishes that it exercised 25 reasonable diligence to discharge the duty.” Id. The Tennysons ask for damages and a 26 declaration of the County’s liability under this section. See SAC at 23 (citing Cal. Code Civ. P. 27 §1060). They claim the County did not discharge mandatory obligations under Penal Code 28 sections 849.5 and 851.6. See id. ¶ 121. Section 849.5 provides that if “a person is arrested and 1 | released and no accusatory pleading is filed charging him with an offense, any record of arrest of 2 | the person shall include a record of release.” Cal. Penal Code § 849.5. It also requires that “the 3 | arrest shall not be deemed an arrest, but a detention only.” Jd. Section 851.6 provides if “a 4 | person is arrested and released and an accusatory pleading is not filed charging him or her with an 5 | offense,” the law enforcement agency that performed the arrest must issue a certificate 6 | “describing the action as a detention.” Cal. Penal Code § 851.6(b). That section also requires 7 | that “[ajny reference to the action as an arrest” must be “deleted from the arrest records of the 8 | arresting agency and of the [California] Department of Justice” and that “any record of the action 9 | shall refer to it as a detention.” Jd. § 851.6(d). 10 The Tennysons allege the County did not deem their arrests detentions, did not issue 11 | certificates and did not delete arrest records as required. SAC § 121. Asa result, they allege, 12 | they suffered unspecified “injuries.” Jd. § 122. It is reasonable to infer from the other allegations 13 | im their complaint that they have been subjected to further arrests and detentions and damaged 14 | reputations as a result of the County’s alleged recordkeeping failures. See id. JJ 24, 39-66. 15 | These allegations state a claim. See, e.g., Rodgers v. City of Pasadena, No. 16-3616, 2016 WL 16 | 7240135, at *4 (C_D. Cal. Dec. 12, 2016) (holding that allegations of “emotional and reputational 17 | harm” supported claims under Government Code § 815.6 and Penal Code §§ 849.5 and 851.6). 18 | The court denies the motion with respect to this claim. 19 G. Intentional Infliction of Emotional Distress (Claim 12) 20 A complaint states a claim for intentional infliction of emotional distress when it alleges 21 | (1) the defendant’s conduct was outrageous; (2) the defendant either intended to cause emotional 22 | distress or acted with reckless disregard to the probability of causing emotional distress; (3) the 23 | plaintiff suffered severe emotional distress; and (4) the defendant’s conduct actually and 24 | proximately caused that emotional distress. Nally v. Grace Cmty. Church, 47 Cal. 3d 278, 300 25 | (1988). A defendant’s conduct is sufficiently “outrageous” when it is “so extreme as to exceed all 26 | bounds of that usually tolerated in a civilized community.” Davidson v. City of Westminster, 27 | 32 Cal. 3d 197, 209 (1982). “And the defendant’s conduct must be ‘intended to inflict injury 28 | /////

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1 | or engaged in with the realization that injury will result.’” Hughes v. Pair, 46 Cal. 4th 1035, 2 | 1051 (2009) (quoting Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1002 (1993)). 3 Here, as summarized above, the Tennysons allege officers pointed guns at Devon and 4 | Dominic, held them in police cars for several hours, ransacked the family home without a 5 | warrant, refused Tina’s requests to use the restroom for so long that she soiled herself and 6 | screamed profanities at her. Sheriff's deputies then allegedly began a months-long campaign of 7 | stalking, harassing, detaining, mocking and jailing. It is plausible to infer that officers caused the 8 | family intense and long-lasting distress and that they knew this was likely to occur. The motion 9 | 1s denied. 10 H. California Bane Act (Claim 17) 11 Finally, the Tennysons assert a claim under the Bane Act. The Bane Act “protects 12 | individuals from conduct aimed at interfering with rights that are secured by federal or state law, 13 | where the interference is carried out ‘by threats, intimidation or coercion.”” Reese v. Cty. of 14 | Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018) (quoting Venegas v. Cty. of Los Angeles, 153 15 | Cal. App. 4th 1230, 1239 (2007)). When a Bane Act claim is based on an alleged federal 16 | constitutional violation, as here, plaintiffs may rely on the same allegations to prove both that the 17 | defendants deprived them of a constitutional right and threatened, intimidated or coerced them 18 | under the Bane Act. See id. at 1043 (“[T]he Bane Act does not require the ‘threat, intimidation or 19 | coercion’ element of the claim to be transactionally independent from the constitutional violation 20 | alleged.”). The claim must also rest on factual allegations that would allow an inference the 21 | defendant had a “specific intent” to violate the plaintiff's rights. See id. (quoting Cornell v. City 22 | & Ch. of San Francisco, 17 Cal. App. 5th 766, 801 (2017)). But an officials’ subjective “intent” 23 | isa question for the factfinder. See Cornell, 17 Cal. App. 5th at 803 (“[T]he jury must make the 24 | second, factual, determination[:] Did the defendant commit the act in question with the particular 25 | purpose of depriving the citizen victim of his enjoyment of the interests protected by that mght?” 26 | (other alterations omitted) (quoting People v. Lashley, 1 Cal. App. 4th 938, 949 (1991))). 27 Under these standards, the Tennysons’ claims of excessive force, unlawful searches and 28 | unlawful detentions support their claims under the Bane Act. This court thus resolves the motion

1 to dismiss this claim by granting it in part with leave to amend and denying it in part to the same 2 extent as those underlying claims. 3 III. CONCLUSION 4 The court resolves defendants’ motion by denying it in part and granting it in part with 5 leave to amend as specified above. Plaintiffs must file any amended complaint within twenty- 6 one days. Because the court has previously permitted amendments to the complaint, further 7 requests for leave to amend are unlikely to be granted. See Zucco Partners, LLC v. Digimarc 8 Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (holding district court’s discretion not to permit 9 amendment is broader if “the plaintiff has previously been granted leave to amend and has 10 subsequently failed to add the requisite particularity to its claims”). 11 This order resolves ECF No. 29. 12 IT IS SO ORDERED. 13 DATED: May 25, 2021.