“The 10 district court need not consider arguments raised for the first time in a reply brief”
How later courts described this case
- “The 10 district court need not consider arguments raised for the first time in a reply brief”
- finding no abuse of 11 discretion in denying leave to amend when amendment would be futile
- finding the class of military prisoners 9 does not meet the standard under § 1985
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 FRANCISCO GUDINO CARDENAS, et No. 2:18-cv-03021-TLN-DMC
al.,
12
Plaintiffs,
13 ORDER
v.
14
COUNTY OF TEHAMA, et al.,
15
Defendants.
16
17
This matter is before the Court on Defendants County of Tehama (“County”), Sheriff
18
Dave Hencratt (“Hencratt”), and Assistant Sheriff Phil Johnson’s (“Johnson”)1 (collectively,
19
“Defendants”) Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF
20
No. 9.) Per the Court’s Order Relating Cases (ECF No. 7), the identical Motion was filed in each
21
related case.2 Plaintiffs in this case (No. 2:18-cv-03021-TLN-DMC), Francisco Gudino Cardenas
22
23
1 Plaintiffs’ Complaint alleges actions against Phil “Johnson,” however, in the related cases
24 and in Defendants’ briefs, this individual is referred to as Phil “Johnston.” Plaintiffs will be given
leave to amend this name should they discover this change was made in error. This Order will
25
refer to Phil Johnston.
26
2 The related cases are as follows: 2:18-cv-02916-TLN-DMC (Phommathep); 2:18-cv-
27 02927-TLN-DMC (Steele); 2:18-cv-02918-TLN-DMC (Woods); 2:18-cv-02912-TLN-DMC
(McFadyen); 2:18-cv-02917-TLN-DMC (A.H.); 2:18-cv-03021-TLN-DMC (Cardenas).
28
1 and Marta Gudino Landaverde (“Plaintiffs”), filed an opposition independent of the other related
2 cases. (ECF No. 11.) Defendants filed a single reply. (ECF No. 12.) For the reasons set forth
3 below, the Court GRANTS in part and DENIES in part Defendants’ Motion to Dismiss.3
4 I. FACTUAL AND PROCEDURAL BACKGROUND4
5 On November 14, 2017, Kevin Neal (“Neal”) murdered at least five people and wounded
6 approximately a dozen more before killing himself in a shootout with law enforcement.
7 According to the Complaint, Neal was well known to law enforcement and they had reason to
8 come into contact with him numerous times before that date.
9 On November 13, 2016, Sheriff’s deputies responded to an incident in which Neal
10 punched a woman in the nose and then shot at her and her boyfriend. Deputies left without
11 making arrests. That same day, Neal’s neighbor, Diana Steele (“Steele”), called the Sheriff’s
12 Department reporting Neal was shooting and yelling in his yard. Deputies responded, but finding
13 the scene quiet on arrival, left.
14 On January 31, 2017, Neal shot an illegally modified Bushmaster AR-15 rifle to menace
15 Steele, her son Danny Elliott, and his girlfriend, Hailey Poland (“Poland”). During the
16 altercation, Neal punched Steele and stabbed Poland in the stomach with a 10-inch knife.
17 Sherriff’s deputies arrested Neal in connection with this incident.
18 On February 28, 2017, the Tehama County Superior Court issued a criminal protective
19 order against Neal in protection of Steele and Poland. The protective order required Neal to
20 surrender all firearms in his possession and prohibited him from acquiring or possessing firearms
21 or ammunition. The protective order also instructed any sworn officer with knowledge that Neal
22 had possession of a gun or ammunition to arrest him.
23
24 3 While the Court has entered identical orders in 2:18-cv-02916 (Phommathep); 2:18-cv-
02927 (Steele); 2:18-cv-02918 (Woods); 2:18-cv-02912 (McFadyen); and 2:18-cv-02917 (A.H.)
25
in line with its instruction to file a single motion for all cases and in order to ensure the continuity
of these cases, this order is unique because the Complaint in 2:18-cv-03021 (Cardenas) alleges
26
different causes of action and these Plaintiffs elected to file a separate opposition.
27
4 The following recitation of facts is derived from the Complaint in this action. (ECF No.
28 1.)
1 On March 17, 2017, the Tehama County Superior Court issued a civil harassment
2 restraining order against Neal in protection of Steele and her family as well as Poland. The
3 restraining order was served on Neal. Neal only surrendered one firearm subsequent to being
4 served with the protective and restraining orders.
5 The Complaint also alleges a number of reports to the Sheriff’s Department regarding
6 Neal’s possession of guns including: a report from his girlfriend that she was missing a firearm; a
7 complaint on August 21, 2017, by Neal’s neighbor, Diana Steele, that Neal was shooting a
8 shotgun towards her home; and an October 21, 2017 complaint by a different neighbor of
9 gunshots and screams coming from Neal’s house. Plaintiffs assert law enforcement either did not
10 respond to each of these reports or responded briefly but did not make contact with Neal.
11 Plaintiffs also allege ammunition could be seen on Neal’s property from the public road. One of
12 Neal’s family members contacted the Sheriff’s Office “shortly before the shooting” informing
13 Defendants that Neal was mentally unstable, deteriorating, and had illegal firearms. The
14 Complaint also asserts deputies actually saw Neal in possession of one or more firearms and that
15 Neal admitted to a deputy that he had been shooting.
16 The Complaint asserts the Sheriff’s office justified their decision not to arrest Neal
17 because they could not “prove to a judge that there is no doubt” he fired a gun and that they could
18 not arrest Neal if he was shooting in a safe manner.
19 On November 13, 2017, Neal went on his shooting rampage. Neal First shot and killed
20 his girlfriend, then shot his neighbors and stole a truck. He continued to a nearby school where
21 he opened fire, injuring two children. In the course of his rampage, Neal stole another car,
22 rammed a couple off the road, and shot and injured a number of people.
23 Neal encountered Plaintiff Francisco Gudino Cardenas (“Cardenas”) at the end of his
24 rampage. Cardenas was driving to the post office when he saw and heard a police car speeding
25 towards him. Cardenas pulled over to the side of the road and the police car stopped on the road
26 ahead of Cardenas. Neal had pulled up to the left side of the road, slightly behind Cardenas. Law
27 enforcement and Neal began exchanging fire with Cardenas caught in the middle.
28 ///
1 Cardenas attempted to drive out of the crossfire, backing his car off the road behind
2 Neal’s vehicle. Cardenas took cover on the floorboards of the passenger side of his car,
3 eventually crawling out of the passenger door. As he stepped out, his right leg was shot.
4 Cardenas again took cover, this time by his bumper. Law enforcement rammed Neal’s car closer
5 to Cardenas on the side of the road. Shortly thereafter, law enforcement shouted, “suspect down.”
6 Cardenas then started dragging himself out from behind his car, yelling for help. Officers
7 shouted, “suspect,” several times and shot at Cardenas. Once they stopped, Cardenas again tried
8 to move out from behind his car. Officers approached and Cardenas noted his leg was bleeding
9 profusely. Cardenas told officers his name and address and lost consciousness.
10 The Complaint alleges Neal took his own life at 8:19 a.m. It further alleges Cardenas was
11 taken to Mercy Medical Center in Redding by ambulance, approximately 38 miles away, but did
12 not reach the medical center until 9:42 a.m. The Complaint concludes that, based on these facts,
13 law enforcement unreasonably delayed and/or impeded ambulance service and emergency
14 medical care from reaching Cardenas.
15 Cardenas survived his wounds — a gunshot injury to his right thigh transecting the
16 popliteal artery and multiple shrapnel lacerations, at least one of which pierced his back and
17 lacerated his liver — with medical intervention. However, Cardenas continues to have a highly
18 restricted range of motion, pain, and numbness in his right leg. The Complaint alleges these
19 lingering symptoms severely limit his ability to work and perform daily living activities.
20 II. STANDARD OF LAW
21 Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a short and plain
22 statement of the claim showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556
23 U.S. 662, 678–79 (2009). Under notice pleading in federal court, the complaint must “give the
24 defendant fair notice of what the claim...is and the grounds upon which it rests.” Bell Atlantic v.
25 Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). “This simplified notice
26 pleading standard relies on liberal discovery rules and summary judgment motions to define
27 disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A.,
28 534 U.S. 506, 512 (2002).
1 On a motion to dismiss, the factual allegations of the complaint must be accepted as
2 true. Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every
3 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail
4 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege
5 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to
6 relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
7 factual content that allows the court to draw the reasonable inference that the defendant is liable
8 for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)).
9 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of
10 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.
11 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an
12 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A
13 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the
14 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at
15 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
16 statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove
17 facts that it has not alleged or that the defendants have violated the...laws in ways that have not
18 been alleged[.]” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,
19 459 U.S. 519, 526 (1983).
20 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough
21 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting
22 Twombly, 550 U.S. at 570). Only where a plaintiff fails to “nudge[ ] [his or her] claims...across
23 the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680. While
24 the plausibility requirement is not akin to a probability requirement, it demands more than “a
25 sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is “a
26 context-specific task that requires the reviewing court to draw on its judicial experience and
27 common sense.” Id. at 679.
28 ///
1 In ruling upon a motion to dismiss, the court may consider only the complaint, any
2 exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of
3 Evidence 201. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu
4 Motors Ltd. v. Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal.
5 1998).
6 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to
7 amend even if no request to amend the pleading was made, unless it determines that the pleading
8 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122,
9 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir.
10 1995)); see also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of
11 discretion in denying leave to amend when amendment would be futile). Although a district court
12 should freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s
13 discretion to deny such leave is ‘particularly broad’ where the plaintiff has previously amended
14 its complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir.
15 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).
16 III. ANALYSIS
17 This is a case grounded in tragic circumstances. The question for the Court at this stage,
18 however, is not if these Plaintiffs were harmed, but rather whether county entities and officials
19 can be held liable for that harm. Plaintiffs bring numerous causes of action against the County
20 Defendants. The claims relevant to this motion are as follows. Plaintiff Cardenas brings four
21 claims pursuant to 42 U.S.C. § 1983: (1) violation of due process and equal protection under the
22 Fourteenth Amendment, citing a state created danger theory against all Tehama County
23 Defendants;5 (2) violation of Fourteenth Amendment due process under a danger creation and
24 deliberate indifference to medical needs theory against all individual Defendants;6 (3) violation of
25 5 The Court understands this to indicate Defendants County of Tehama, Hencratt, and
Johnston.
26
27 6 The Court understands this to indicate Defendants Hencratt, Johnston, Corning Police
Chief Jeremiah Fears (dismissed by stipulation of the parties (ECF No. 8)), and the newly
28 substituted Defendant Lester Squier (ECF No. 15). The present Motion is brought only by the
1 the Fourth Amendment under an unreasonable seizure/excessive force theory against all
2 individual Defendants; and (4) violation of the Fourteenth Amendment for deprivations of due
3 process shocking the conscience against all individual Defendants. Plaintiff Cardenas also brings
4 a fifth cause of action for failure to intervene to prevent civil rights violations under 42 U.S.C.
5 §§1983, 1985, and 1986 and a sixth cause of action for conspiracy to violate civil rights under 42
6 U.S.C. § 1985 against all individual Defendants. Cardenas additionally brings a claim for assault
7 and battery against all Defendants as well as one for intentional infliction of emotional distress
8 and another for negligence. Plaintiff Marta Gudino Landaverde (“Landaverde”) brings a claim
9 for loss of consortium against all Defendants. Both Plaintiffs bring a claim for trespass to chattels
10 and/or conversion against all Defendants.
11 A. Standing
12 As an initial matter, Defendants argue that a number of the Plaintiffs across all related
13 actions do not have standing to bring many of the claims asserted in the numerous complaints.
14 While Defendants do not specify which Plaintiffs may lack standing nor which causes of action
15 they might be unable to bring, it appears Defendants are only challenging actions brought by
16 individuals as successors in interest. As no Plaintiffs in this case are bringing their claims as
17 successors in interest, this argument is not applicable.
18 B. First Cause of Action for Violation of the Fourteenth Amendment
19 i. Equal Protection Claim
20 Plaintiffs correctly assert in their opposition that Defendants do not challenge the First
21 Cause of Action insofar as it asserts a violation of equal protection under the Fourteenth
22 Amendment. In reply, Defendants claim that the equal protection argument is “part and parcel”
23 with their arguments regarding “DeShaney, Castle Rock, and Zelig.” (ECF No. 9 at 26.) This
24 argument is unpersuasive. In order to make out an equal protection violation, a plaintiff must
25 “demonstrate that enforcement had a discriminatory effect and the police were motivated by a
26 discriminatory purpose.” Rosenbaum v. City & Cty. of San Francisco, 484 F.3d 1142, 1152 (9th
27
28 County, Hencratt, and Johnston.
1 Cir. 2007). This is a standard unique from those discussed regarding special relationship and
2 state created danger theories of Fourteenth Amendment due process violations. Defendants failed
3 to discuss this standard and thus did not challenge the First Cause of Action insofar as it asserts
4 violation of equal protection in their Motion. Instead, Defendants cite the appropriate test for an
5 equal protection violation claim for the first time in their reply and assert that Plaintiffs have
6 failed to allege facts showing purposeful discrimination. Defendants further argue the Equal
7 Protection Clause does not entitle a person to “adequate, or indeed to any, police protection.”
8 Hilton v. City of Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000). Defendants may not bring these
9 arguments for the first time in reply. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The
10 district court need not consider arguments raised for the first time in a reply brief”). To the extent
11 Defendants seek to dismiss the First Cause of Action under an equal protection theory, the
12 Motion is DENIED.
13 ii. Deprivation of Due Process State Created Danger
14 Plaintiffs’ First Cause of action is asserted against Tehama County Defendants for
15 violation of due process under the Fourteenth Amendment. Generally, there is no duty on the part
16 of government entities to protect the life, liberty, and property of its citizens against invasion by
17 private parties. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989).
18 However, there are two exceptions to this general rule: “(1) the ‘special relationship’ exception;
19 and (2) the ‘danger creation’ exception.” L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992).
20 Plaintiff’s claim is only predicated on a state created danger theory. In order to prevail under a
21 state created danger theory, a plaintiff must show (1) there was “affirmative conduct on the part
22 of the state in placing the plaintiff in danger” and (2) the state acted with “deliberate indifference”
23 to a “known or obvious danger.” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011)
24 (citing Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000) and L.W. v.
25 Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)).
26 ///
27 ///
28 ///
1 Plaintiffs argue Defendants engaged in affirmative conduct by failing to address the
2 complaints against Neal and, in doing so, gave prior assurance to Neal that he would not be
3 punished for infractions. In support of this assertion, Plaintiffs analogize to Dwares v. City of
4 New York, 985 F.2d 94 (2nd Cir. 1993), Pena v. DePrisco, 432 F.3d 98 (2nd Cir. 2005), and Okin
5 v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 430 (2d Cir. 2009).7 However, these
6 cases are not controlling and are easily distinguishable in any event.
7 In Dwares, the complaint alleged police told the third-party attackers that police would
8 not interfere with the attack unless it got “completely out of control.” Dwares, 985 F.2d at 97. In
9 Pena, a police officer killed a number of people while driving intoxicated. Pena, 432 F.3d 98.
10 The complaint in that case alleged fellow officers and supervisors failed to intervene, which the
11 circuit court explicitly found insufficient to state a claim under a state created danger theory. The
12 circuit court did, however, find a sufficient allegation that the officer was encouraged to
13 inappropriately and excessively drink alcohol. Pena, 432 F.3d at 111. The Second Circuit noted
14 that “the key question is whether the individual defendants told, or otherwise communicated to,
15 [the officer] that he could drink excessively and drive while intoxicated without fear of
16 punishment.” Id. Pena established that the state actor must communicate with the individual
17 who perpetrated the harm in order to be liable under § 1983. Id. In Okin, “[t]he record
18 demonstrates an escalating series of incidents that followed the officers’ response to Okin’s first
19 complaint of domestic violence, where the officers and [the perpetrator] had discussed sports, and
20 the officers openly expressed camaraderie with [the perpetrator] and contempt for Okin.” Okin,
21 577 F.3d at 430.
22 ///
23 ///
24 ///
25
7 Plaintiffs also cite Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990), however, the
26
procedural posture of Freeman makes it inapplicable here. In Freeman, the circuit court
27 overturned the district court’s decision to dismiss the complaint without leave to amend. The
circuit court did not explicitly find that the additional facts argued on appeal would save the
28 complaint, but rather found the plaintiffs should have the opportunity to amend.
1 In Okin, Pena, and Dwares the state actor had direct contact with the third-party assailant,
2 indicating — whether explicitly or implicitly — to them that no action would be taken to prevent,
3 stop, or punish their misconduct. Further, the Second Circuit noted that it is the perpetrator’s
4 awareness of law enforcement’s dismissive and indifferent attitude toward complaints that
5 “nullifies the deterrent capacity of police response.” Okin, 577 F.3d at 430. Here, Plaintiffs
6 allege law enforcement failed to respond to various reports against Neal; Plaintiffs do not,
7 however, allege Neal was aware of these reports, nor of law enforcement’s response, or lack
8 thereof, to the reports. The Complaint does allege one occasion on which a sheriff’s deputy had
9 contact with Neal wherein Neal admitted to shooting a gun. While it is alleged the sheriff’s
10 deputy took no action, this single event is insufficient to establish an implicit prior assurance that
11 should Neal perpetrate violence against others, law enforcement would not respond.
12 As for controlling authority, both parties cite Kennedy v. City of Ridgefield, 439 F.3d 1055
13 (9th Cir. 2006). In Kennedy, the officer in question informed the assailant of a complaint made
14 against him by his neighbor. The officer knew of the assailant’s violent history, including
15 breaking and entering, and of the neighbor’s fear of retribution. That same night, the assailant
16 broke into the neighbor’s house, shot her, and shot and killed her husband. The court found these
17 facts sufficient to allege affirmative conduct on the part of the officer placing the neighbor in
18 danger she would not have otherwise faced. In Kennedy, unlike the allegations in the Complaints
19 here, the officer took an affirmative action: contacting the assailant. The Complaints here do not
20 allege any affirmative actions; the closest they come is alleging that unnamed officers threatened
21 to arrest the individuals filing complaints against Neal. While such a statement by officers is
22 objectionable, it is insufficient to allege an affirmative act that placed the victims in a more
23 dangerous position. Regardless of this conduct, Neal was, and would have remained, a dangerous
24 individual prone to violent behavior. Further, the officers’ failure to enforce the restraining
25 orders or follow up directly with Neal regarding the complaints against him are examples of
26 inaction, not affirmative conduct, and are insufficient to state a claim under the state created
27 danger theory.
28 ///
1 The Court need not reach the question of deliberate indifference because the Complaints
2 fail to allege affirmative acts by Defendants placing Plaintiffs in danger.
3 Plaintiffs have not stated sufficient facts to allege a violation of the Fourteenth
4 Amendment based on a state created danger theory, and so Defendants’ Motion is GRANTED as
5 to Plaintiffs’ first cause of action for violation of due process. Because the defects described
6 above could be cured by amendment, such dismissal is with leave to amend. Lopez, 203 F.3d at
7 1130.
8 C. Second Cause of Action for Deprivation of Due Process, Danger Creation, and
9 Deliberate Indifference to Medical Needs
10 Plaintiffs assert unnamed officers placed Cardenas in a position that was more dangerous
11 than the one in which they found him by “exposing [Cardenas] to the gunman, Neal’s, gunfire; by
12 themselves shooting in [Cardenas’s] direction and actually at [Cardenas], and thereby causing
13 [Cardenas] to be struck by projectiles; and by impeding and delaying [Cardenas’s] access to an
14 ambulance and emergency medical care.” (ECF No. 1 at ¶ 118.)
15 Cardenas brings this claim against Sheriff Hencratt and Assistant Sheriff Johnston, as well
16 as various Doe Defendants. Hencratt and Johnston are the only two “individual defendants” who
17 have brought this Motion to Dismiss.8 “Under Section 1983, supervisory officials are not liable
18 for actions of subordinates on any theory of vicarious liability.” Hansen v. Black, 885 F.2d 642,
19 645–46 (9th Cir. 1989). However, “[a] supervisor may be liable if there exists either (1) his or
20 her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection
21 between the supervisor’s wrongful conduct and the constitutional violation.” Id.
22 The Complaint alleges Hencratt and Johnston are supervisors. (ECF No. 1 at ¶¶ 15–16.)
23 The Complaint further asserts in conclusory fashion, “The supervisory defendants are liable to
24 plaintiff for their own acts and/or omissions; for inadequately training, supervising, and/or
25 controlling their subordinates; for acquiescing in their subordinates’ acts and/or omissions; and/or
26 for evincing a reckless disregard or callous indifference to plaintiff’s rights….” (Id.) However,
27
8 Lester Squier was recently substituted for Doe Defendant #1. (ECF No. 14.) However,
28 Lester Squire is not a moving party and therefore is not impacted by this analysis.
1 there are no allegations that Hencratt or Johnston participated in the shootout, were anywhere in
2 the vicinity of the shootout, or took personal action to delay medical care. The conclusory
3 statement that these Defendants inadequately trained their subordinates is insufficient under the
4 pleading standards and cannot support the necessary causal connection between the supervisor’s
5 alleged wrongful action and the constitutional violation. The Complaint does not provide facts
6 showing in what ways Hencratt and Johnston failed to train the officers in question, nor how that
7 failure had a sufficient causal connection to either the shooting or the alleged delay in medical
8 care.
9 In short, because the Complaint fails to allege facts related to Hencratt and Johnston’s
10 involvement in the shooting or delayed medical response, nor the specific failures of their training
11 or supervision, the Second Cause of Action must be dismissed as to these two Defendants.
12 Defendants’ Motion to Dismiss the Second Cause of Action is therefore GRANTED as to
13 Hencratt and Johnston. Because the defects described above could be cured by amendment, such
14 dismissal is with leave to amend. Lopez, 203 F.3d at 1130.
15 D. Third Cause of Action for Violation of the Fourth Amendment
16 Cardenas also alleges a violation of the Fourth Amendment for unreasonable seizure and
17 excessive force. The Fourth Amendment is not “a guarantee against all searches and seizures, but
18 only against unreasonable searches and seizures.” United States v. Sharpe, 470 U.S. 675, 682
19 (1985) (emphasis in original). In evaluating the reasonableness of a stop, courts examine
20 “whether the officer’s action was justified at its inception, and whether it was reasonably related
21 in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio,
22 392 U.S. 1, 20 (1968).
23 As a preliminary matter, Defendants Hencratt and Johnston — the “individual
24 Defendants” bringing the present Motion — cannot be held liable for the actions of individual
25 officers on a vicarious liability theory under § 1983, as discussed above. Hansen, 885 F.2d at
26 645–46. Plaintiffs have failed to plead any facts which would allow them to bring this cause of
27 action against these individual Defendants. Again, Plaintiffs assert the conclusory statement that
28 Hencratt and Johnston inadequately trained, supervised, and/or controlled their subordinates.
1 (ECF No. 1 at ¶ 132.) But the Complaint is devoid of facts showing any actions on the part of
2 Hencratt and Johnston which would expose them to liability. Indeed, there are no facts indicating
3 what, in the training of their subordinates, was the deficiency that ultimately lead to the alleged
4 constitutional deprivation, nor that Hencratt or Johnston were personally involved in the shooting.
5 For this reason, Defendants’ motion to dismiss this cause of action is GRANTED as to
6 Johnston and Hencratt. Because the defects described above could be cured by amendment, such
7 dismissal is with leave to amend. Lopez, 203 F.3d at 1130.
8 E. Fourth Cause of Action for Deprivation of Due Process Shocking to the
9 Conscience
10 Plaintiff asserts in their Opposition that this Cause of Action is pleaded in the alternative
11 to the Third Cause of Action for violation of the Fourth Amendment. (ECF No. 11 at 21.) As
12 such, this claim is predicated on the same facts as the one before it. Again, Defendants Hencratt
13 and Johnston cannot be held liable for the actions of their subordinates on a vicarious liability
14 theory. Hansen, 885 F.2d at 645–46. For all the reasons discussed above, and because Plaintiffs
15 have failed to plead facts indicating Hencratt and Johnston’s personal involvement, this Cause of
16 Action is similarly dismissed as to these Defendants. Therefore, Defendants’ motion to dismiss
17 this cause of action is GRANTED as to Johnston and Hencratt. Because the defects described
18 above could be cured by amendment, such dismissal is with leave to amend. Lopez, 203 F.3d at
19 1130.
20 F. Qualified Immunity
21 Qualified immunity protects government officers from “liability for civil damages insofar
22 as their conduct does not violate clearly established statutory or constitutional rights of which a
23 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Pearson
24 v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity questions are to be resolved at the
25 “earliest possible stage in litigation” because qualified immunity is “an immunity from suit rather
26 than a mere defense to liability.” Pearson, 555 U.S. 231–2; Mitchell v. Forsyth, 472 U.S. 511,
27 526 (1985).
28 ///
1 In determining qualified immunity, courts must ask: (1) taken in the light most favorable
2 to the party asserting the injury, do the facts alleged show the officer’s conduct violated a
3 constitutional right (Saucier v. Katz, 533 U.S. 194, 201 (2001)); and (2) whether the right was
4 “clearly established” at the time of the alleged misconduct (Pearson. 555 U.S. at 223–25).
5 As set forth above, Plaintiffs’ § 1983 claims have been dismissed on other grounds,
6 therefore, the Complaint as it stands fails to allege a constitutional violation. Because of this, the
7 Court need not analyze whether certain clearly established rights existed at the time of the alleged
8 misconduct. However, because the Court has granted Plaintiffs leave to amend their § 1983
9 claims, it would be premature to grant a motion to dismiss based on qualified immunity
10 independent from the failure to state a violation in and of itself. If and when Plaintiffs
11 successfully amend to allege a constitutional violation, Defendants are free to raise qualified
12 immunity.
13 G. Fifth and Sixth Causes of Action Under 42 U.S.C. §§ 1983, 1985, and 1986.
14 Cardenas brings his Sixth Cause of Action under 42 U.S.C. § 1985, however, he fails to
15 specify under which subsection he brings this claim. Defendants move to dismiss these claims
16 and Plaintiffs do not explicitly oppose, except to request leave to amend. 42 U.S.C. § 1985(2)
17 prohibits conspiracies to obstruct justice, specifically by denying access to state or federal courts.
18 Subsection (3) prohibits “two or more persons in any State or Territory conspire[ing] or go[ing] in
19 disguise on the highway or on the premises of another, for the purpose of depriving, either
20 directly or indirectly, any person or class of persons of the equal protection of the laws, or of
21 equal privileges and immunities under the laws.” 42 U.S.C.A. § 1985(3).9 Plaintiffs have failed
22 to state a claim under either of these subsections.
23 ///
24 ///
25 ///
26
9 Subsection (1) prohibits a conspiracy to “prevent, by force, intimidation, or threat, any
27 person from accepting or holding any office, trust, or place of confidence under the United States,
or from discharging any duties thereof…” 42 U.S.C.A. § 1985(1). There are no allegations in the
28 Complaint that either Plaintiff held office. Therefore, this subsection is inapplicable.
1 First, the Complaint does not assert any facts indicating that Cardenas was denied access
2 to the courts. Further, liability under this section requires proof of “some racial, or perhaps
3 otherwise class-based, invidiously discriminatory animus behind the conspirators’
4 action.” See Griffin v. Brekenridge, 403 U.S. 88, 102 (1971). Plaintiffs fail to allege facts
5 showing they were targeted as members of a class, let alone a suspect class. Elsewhere in the
6 Complaints, Plaintiffs assert an equal protection claim based on their residency in Rancho
7 Tehama, but this class does not meet the standard necessary for protection under § 1985. See
8 Trerice v. Pedersen, 769 F.2d 1398, 1402 (9th Cir. 1985) (finding the class of military prisoners
9 does not meet the standard under § 1985); Nakao v. Rushen, 542 F.Supp. 856, 859
10 (N.D.Cal.1982) (class of “state prisoners” not protected under section 1985(3) because there has
11 been no congressional determination that it requires special federal civil rights assistance, and
12 because it does not possess “discrete, insular and immutable characteristics comparable to those
13 characterizing classes such as race, national origin and sex”). Neither does the Complaint assert
14 facts which would indicate an “invidiously discriminatory animus” on the part of any Defendant.
15 Next, “[t]o state a cause of action under [§] 1985(3), a complaint must allege (1) a
16 conspiracy, (2) to deprive any person or a class of persons of the equal protection of the laws, or
17 of equal privileges and immunities under the laws, (3) an act by one of the conspirators in
18 furtherance of the conspiracy, and (4) a personal injury, property damage or a deprivation of any
19 right or privilege of a citizen of the United States.” Gillespie v. Civiletti, 629 F.2d 637, 641 (9th
20 Cir. 1980). “A § 1985 claim ‘must allege facts to support the allegation that defendants conspired
21 together. A mere allegation of conspiracy without factual specificity is insufficient.’” Buckelew
22 v. Gore, No. 20-CV-00158-WQH-JLB, 2020 WL 4188166, at *13 (S.D. Cal. July 21, 2020)
23 (quoting Hamilton v. Hurtado, No. 12cv1940 JAH (RBB), 2013 WL 3964755, at *7–8 (S.D. Cal.
24 July 31, 2013)). Plaintiffs only make the bare assertion that Defendants conspired with each
25 other. There are no additional facts which support this conclusion. Further, the same requirement
26 that the deprivation of a right must be motivated by “some racial, or perhaps otherwise class-
27 based, invidiously discriminatory animus behind the conspirators’ action” applies. RK Ventures,
28 Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir. 2002) (internal quotations and citations
1 omitted). As discussed above, the allegation that Plaintiffs were denied equal protection based on
2 the location where they lived is insufficient to meet this standard.
3 Plaintiffs’ Complaint therefore fails to assert a cause of action under § 1985(2) or (3) and
4 Defendants’ motion to dismiss as to these claims is GRANTED with leave to amend.
5 Cardenas’s Fifth Cause of Action additionally asserts a claim pursuant to 42 U.S.C. §
6 1986, which also necessarily fails. 42 U.S.C. § 1986 provides in relevant part:
7 Every person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this title, are
8 about to be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses so to do,
9 if such wrongful act be committed, shall be liable to the party injured,
or his legal representatives, for all damages caused by such wrongful
10 act, which such person by reasonable diligence could have prevented
11
42 U.S.C.A. § 1986. The Ninth Circuit has asserted that “a cause of action is not provided under
12
42 U.S.C. § 1986 absent a valid claim for relief under section 1985.” Trerice v. Pedersen, 769
13
F.2d 1398, 1403 (9th Cir. 1985). A valid claim for relief under § 1985 is therefore a condition
14
precedent for any action under § 1986. Because Plaintiffs’ § 1985 claim fails, so must their cause
15
of action under § 1986. Therefore, Defendants’ motion to dismiss this claim is GRANTED.
16
Because the defects described above could be cured by amendment, such dismissal is with leave
17
to amend. Lopez, 203 F.3d at 1130.
18
H. Seventh Through Eleventh Causes of Action
19
“The district court considers, sua sponte, whether Plaintiff’s conclusory allegation that he
20
complied with the California Tort Claims Act is sufficiently pleaded for purposes of the Tort
21
Claims Act, California Government Code § 810 et seq., as it raises a jurisdictional issue.”
22
Creighton v. City of Livingston, 628 F. Supp. 2d 1199, 1224 (E.D. Cal. 2009). “The California
23
Tort Claims Act requires, as a condition precedent to suit against a public entity, the timely
24
presentation of a written claim and the rejection of the claim in whole or in part.” Mangold v.
25
California Pub. Utilities Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). “The CTCA applies to
26
state law claims wherever those claims are brought, and the requirement that a plaintiff must
27
affirmatively allege compliance with the CTCA applies in federal court.” Butler v. Los Angeles
28
1 Cty., 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008). The California Tort Claims Act (“CTCA”)
2 applies to actions for damages against local public entities or public employees acting within the
3 scope of that employee’s public employment. Cal. Gov. Code § 950.2. “[A] plaintiff must allege
4 facts demonstrating or excusing compliance with the claim presentation requirement. Otherwise,
5 his complaint is subject to a general demurrer for failure to state facts sufficient to constitute a
6 cause of action.” State of California v. Superior Court, 32 Cal. 4th 1234, 1243 (2004). “The
7 timely presentation of a claim under the Tort Claims Act is not merely a procedural requirement
8 but is an actual ‘element of the plaintiff’s cause of action.’” Creighton v. City of Livingston, 628
9 F. Supp. 2d 1199, 1225 (E.D. Cal. 2009) (quoting Shirk v. Vista Unified Sch. Dist., 42 Cal.4th
10 201, 209 (2007)).
11 While the Complaint here states “Plaintiffs filed timely administrative ‘tort’ claims against
12 County of Tehama, City of Corning, and State of California officials pursuant to Cal. Gov. Code
13 §§ 910 et seq., and hereby timely files this lawsuit within six months of defendants’ rejections of
14 those claims” (ECF No. 1 at ¶ 10), this statement is a mere legal conclusion. Plaintiffs have not
15 provided the claim as an attachment to the Complaint, nor have they alleged what specific facts
16 and causes of action were referenced in the claim. Without such information Plaintiffs have not
17 sufficiently pleaded facts demonstrating they complied with the CTCA in bringing this state tort
18 claim. Therefore, Defendants’ motion to dismiss this cause of action is GRANTED. Because the
19 defects described above could be cured by amendment, such dismissal is with leave to amend.
20 Lopez, 203 F.3d at 1130.
21 Plaintiffs additionally assert state tort claims for intentional infliction of emotional distress
22 (“IIED”), negligence, loss of consortium, and trespass to chattels/conversion — causes of action
23 eight through eleven — but fail to allege compliance with the California Tort Claims Act
24 (“CTCA”). Like the assault and battery claim, a plaintiff must first comply with the CTCA
25 before bringing a suit for damages based in state law under these causes of action. Mangold, 67
26 F.3d at 1477. Plaintiffs have failed to allege facts demonstrating compliance with the CTCA.
27 The statement that Plaintiffs “filed timely administrative ‘tort’ claims” is a mere conclusion. As
28
1 such, these causes of action must be dismissed.10 Therefore, Defendants’ motion to dismiss
2 claims eight, nine, ten, and eleven is GRANTED. Because the defects described above could be
3 cured by amendment, such dismissal is with leave to amend. Lopez, 203 F.3d at 1130.
4 IV. CONCLUSION
5 For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’
6 Motion to Dismiss as follows:
7 1. The Motion to Dismiss the First Cause of Action is GRANTED with leave to
8 amend as to the due process claim and DENIED as to the equal protection claim;
9 2. The Motion to Dismiss the Second Cause of Action is GRANTED as to
10 Defendants Hencratt and Johnston, with leave to amend;
11 3. The Motion to Dismiss the Third Cause of Action is GRANTED as to Defendants
12 Hencratt and Johnston, with leave to amend;
13 4. The Motion to Dismiss the Fourth Cause of Action is GRANTED as to Defendants
14 Hencratt and Johnston, with leave to amend;
15 5. The Motion to Dismiss the Fifth Cause of Action is GRANTED with leave to
16 amend;
17 6. The Motion to Dismiss the Sixth Cause of Action is GRANTED with leave to
18 amend;
19 7. The Motion to Dismiss the Seventh Cause of Action is GRANTED with leave to
20 amend;
21 8. The Motion to Dismiss the Eighth Cause of Action is GRANTED with leave to
22 amend;
23 9. The Motion to Dismiss the Ninth Cause of Action is GRANTED with leave to
24 amend;
25
10 Defendants make a brief assertion that Johnston and Hencratt’s statements are protected
26
under the Anti-SLAPP statute. However, in order to assert protection under the Anti-SLAPP
27 statute, Defendants must file a separate special motion to strike. CCP § 425.16(b). No such
motion has been filed and therefore this Court will not analyze this cause of action under the
28 Anti-SLAPP statutes.
1 10. The Motion to Dismiss the Tenth Cause of Action is GRANTED with leave to
2 amend;
3 11. The Motion to Dismiss the Eleventh Cause of Action is GRANTED with leave to
4 amend;
5 Plaintiffs may file an amended complaint not later than 30 days from the date of electronic
6 filing of this Order. Defendants’ responsive pleading is due 21 days after Plaintiffs file the
7 amended complaint.
8 IT IS SO ORDERED.
9 DATED: August 3, 2020
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28