explaining that where 5 “a party alleges that he or she is disabled under the ADA, courts 6 have generally required the party to plead the disability with 7 some factual specificity.”
How later courts described this case
- explaining that where 5 “a party alleges that he or she is disabled under the ADA, courts 6 have generally required the party to plead the disability with 7 some factual specificity.”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 EASTERN DISTRICT OF CALIFORNIA
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10 MICHAEL A. LIBBY, No. 2:21-cv-00017-JAM-AC
11 Plaintiff,
12 v. ORDER GRANTING DEFENDANTS CITY
OF GRIDLEY, GRIDLEY POLICE
13 CITY OF GRIDLEY, et al., DEPARTMENT AND GRIDLEY POLICE
CHIEF RODNEY HARR’S MOTION TO
14 Defendants. DISMISS
15
16 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND1
17 On November 23, 2020, Gridley Police Officer Devin Pasley
18 (“Pasley”) and another unidentified officer confronted Michael A.
19 Libby (“Plaintiff”) outside his girlfriend’s residence in
20 Gridley, California. Compl. ¶¶ 13-14, ECF No. 1. As Officer
21 Pasley approached to arrest him, Plaintiff informed Pasley that
22 he had “a physical disability caused by a previous shoulder
23 surgery requiring the site of the injury to be treated with
24 care.” Id. ¶¶ 16-17. Plaintiff alleges Officer Pasley ignored
25 the warning about his injured arm, instead forcefully grabbing
26
27 1 This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
28 scheduled for April 20, 2021.
1 hold of him, applying force to his injured arm, hyper-flexing his
2 arm and shoulder, and then twisting his arms behind his back.
3 Id. ¶¶ 18-20. Plaintiff cried out in pain and informed the
4 officers that Pasley’s actions were further injuring his arm.
5 Id. ¶ 21. Both officers ignored Plaintiff’s complaints. Id.
6 ¶ 22. Following the arrest, the officers transported Plaintiff
7 to the Gridley police station and then to the hospital. Id.
8 ¶ 26. The hospital informed Plaintiff he suffered two fractures
9 to his injured arm. Id. ¶ 27. Plaintiff was subsequently
10 released from custody. Id. ¶ 28.
11 In response, Plaintiff filed this Section 1983 action
12 against the City of Gridley, the Gridley Police Department,
13 Gridley Police Chief Rodney W. Harr (“Harr”), and Officer Pasley.
14 Id. ¶¶ 6-9. Defendants City of Gridley, Gridley Police
15 Department, and Chief Harr now bring the present Motion to
16 dismiss under Federal Rule of Civil Procedure 12(b)(6). Mot. to
17 Dismiss (“Mot.”), ECF No. 10-1. The complaint contains twelve
18 claims, not all of which are relevant to the present Motion. See
19 generally Mot. Defendants City of Gridley and Gridley Police
20 Department seek to dismiss: the fourth claim for violation of the
21 Rehabilitation Act (“Rehab Act”), 29 U.S.C. Section 701, et seq.;
22 and the fifth claim for violation of the Americans with
23 Disabilities Act (“ADA”), 42 U.S.C. Section 12101, et seq. Mot.
24 at 7-8. Additionally, Defendant Harr moves to dismiss:
25 Plaintiff’s second claim for excessive force pursuant to 42
26 U.S.C. Section 1983; seventh claim for excessive force pursuant
27 to Article I Section 13 of the California Constitution; eighth
28 claim for violation of the Bane Act, Cal. Civ. Code. Section
1 52.1; tenth claim for assault/battery; eleventh claim for
2 intentional infliction of emotional distress (“IIED”); and
3 twelfth claim for negligence. Mot. at 3-7. These claims are
4 brought against Harr in his individual capacity. Compl. ¶ 8.
5 Plaintiff opposed Defendants’ Motion. Opp’n, ECF No. 15.
6 Defendants replied. Reply, ECF No. 17. For the reasons set
7 forth below, the Court grants Defendants’ Motion to Dismiss.
8 II. OPINION
9 A. Legal Standard
10 A Rule 12(b)(6) motion challenges the complaint as not
11 alleging sufficient facts to state a claim for relief. Fed. R.
12 Civ. P. 12(b)(6). “To survive a motion to dismiss [under
13 12(b)(6)], a complaint must contain sufficient factual matter,
14 accepted as true, to state a claim for relief that is plausible
15 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
16 (internal quotation marks and citation omitted). While
17 “detailed factual allegations” are unnecessary, the complaint
18 must allege more than “[t]hreadbare recitals of the elements of
19 a cause of action, supported by mere conclusory statements.”
20 Id. In considering a motion to dismiss for failure to state a
21 claim, the court generally accepts as true the allegations in
22 the complaint, construes the pleading in the light most
23 favorable to the party opposing the motion, and resolves all
24 doubts in the pleader’s favor. Lazy Y Ranch LTD. v. Behrens,
25 546 F.3d 580, 588 (9th Cir. 2008). “In sum, for a complaint to
26 survive a motion to dismiss, the non-conclusory ‘factual
27 content,’ and reasonable inferences from that content, must be
28 plausibly suggestive of a claim entitling the plaintiff to
1 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
2 2009).
3 B. Analysis:
4 1. Claims against the City and Police Department
5 The City of Gridley and Gridley Police Department move to
6 dismiss Plaintiff’s fourth claim for violation of the Rehab Act
7 and fifth claim for violation of the ADA. Mot. at 7-8; Reply at
8 6. Their principal argument is that Plaintiff has not properly
9 alleged a disability. Id.
10 To state a claim under Section 504 of the Rehab Act, a
11 plaintiff must allege: “(1) he is an individual with a
12 disability; (2) he is otherwise qualified to receive the benefit;
13 (3) he was denied the benefits of the program solely by reason of
14 his disability; and (4) the program receives federal financial
15 assistance.” Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th
16 Cir. 2001) (internal quotation marks and citations omitted).
17 Similarly, to state a claim under Title II of the ADA, a
18 plaintiff must allege that: “(1) he is a qualified individual
19 with a disability; (2) he was either excluded from participation
20 in or denied the benefits of a public entity’s services,
21 programs, or activities, or was otherwise discriminated against
22 by the public entity; and (3) such exclusion, denial of benefits,
23 or discrimination was by reason of his disability.” Id. Because
24 the ADA and Rehab Act provide identical remedies, procedures, and
25 rights, claims under both statutes are analyzed in unison.
26 Tennyson v. Cty. of Sacramento, No. 2:19-cv-00429-KJM, 2020 WL
27 4059568 at *4 (E.D. Cal. July 20, 2020)(internal citation
28 omitted).
1 Further, to properly allege the element of disability,
2 plaintiffs must identify more than the general nature of the
3 disability. Id. at *5; see also Bresaz v. Cty. of Santa Clara,
4 136 F.Supp.3d 1125, 1136 (N.D. Cal. 2015) (explaining that where
5 “a party alleges that he or she is disabled under the ADA, courts
6 have generally required the party to plead the disability with
7 some factual specificity.”)
8 While Defendants contend Plaintiff has not alleged his
9 disability with the requisite factual specificity, see Mot. at 7-
10 8, Plaintiff insists that he has, see Opp’n at 11-13. The only
11 allegations regarding Plaintiff’s disability are that: (1) “he
12 had a physical disability caused by a previous shoulder surgery
13 which required the site of the injury to be treated with care,”
14 and (2) he “had a physical impairment that substantially limited
15 one or more major life activities, or was perceived to have a
16 physical impairment.” Compl. ¶¶ 17, 59, 64; see also Opp’n at
17 11-12 (referring the Court to these paragraphs). Although these
18 allegations identify the general nature of the disability, they
19 are unsupported with facts and are therefore improperly pled
20 conclusory statements. See Iqbal, 556 U.S. at 679. For this
21 reason, Plaintiff fails to state a claim under either the Rehab
22 Act or ADA.2
23 Defendants, however, did not show that they are entitled to
24 dismissal of these claims with prejudice. Specifically, they did
25 not bring forward authority supporting their position that a
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2 As such, the Court does not reach the parties’ additional
27 arguments regarding the elements of reasonable accommodation,
deprivation of a benefit or public service due to the disability,
28 and intentional discrimination. See Mot. at 8; Opp’n at 13-15.
1 shoulder injury requiring surgery cannot constitute a disability
2 as a matter of law. In their Motion, Defendants contend “a bare
3 assertion of a prior shoulder injury does not qualify an
4 individual for protections under the ADA”; and in support of this
5 contention cite to Sanchez v. United Parcel Serv. Inc., 625 F.
6 App'x. 806, 808 (9th Cir. 2015). Mot. at 8. However, as
7 Plaintiff points out in opposition, Sanchez involved review of a
8 district court’s decision about the plaintiff’s disability at the
9 summary judgment rather than motion to dismiss stage. Opp’n at
10 13. The events at issue in Sanchez also predated the January 1,
11 2009 effective date of the ADA Amendment Act of 2008 and thereby
12 predated the rules of construction regarding disability set forth
13 in that amendment, whereas here the incident took place on
14 November 23, 2020, clearly post-amendment. Id. Defendants had
15 the opportunity to address Plaintiff’s Sanchez arguments in their
16 reply brief but failed to do so. See Reply.
17 Accordingly, Plaintiff’s fourth and fifth claims are
18 dismissed without prejudice.
19 2. Claims Against Harr
20 Plaintiff’s second, seventh, eighth, tenth, eleventh, and
21 twelfth claims assert supervisory liability against Chief Harr.
22 Compl. ¶¶ 48, 78, 88, 107, 115, 123. According to Harr, these
23 claims should be dismissed because Plaintiff’s allegations are
24 “wholly conclusory” and “insufficient to pursue any of the claims
25 against [him].” Reply at 2.
26 a. Second and Seventh Claims
27 Harr first moves to dismiss Plaintiff’s second and seventh
28 claims for excessive force, arguing Plaintiff has not
1 sufficiently pled conduct on the part of Harr that would allow
2 for individual liability. Mot. at 3-5; Reply at 2-4.
3 To state a Section 1983 claim against a supervisor, a
4 plaintiff must allege: “(1) his or her personal involvement in
5 the constitutional deprivation, or (2) a sufficient causal
6 connection between the supervisor’s wrongful conduct and the
7 constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207
8 (9th Cir. 2011) (internal citation omitted); see also Larez v.
9 City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991)
10 (explaining a “supervisor will rarely be directly and personally
11 involved in the same way as are the individual officers who are
12 on the scene inflicting constitutional injury” yet “this does not
13 prevent a supervisor from being held liable in his individual
14 capacity.”).
15 Here, Plaintiff concedes there was no direct, on-the-scene
16 personal involvement by Harr. Opp’n at 3-4. Rather, Plaintiff
17 argues he has sufficiently alleged a causal connection between
18 Harr’s conduct and the violation of Plaintiff’s Fourth Amendment
19 right to be free from excessive force. Id. Plaintiff’s
20 allegations against Harr are as follows:
21 In paragraph 33, Plaintiff alleges Harr maintained “a policy
22 or custom of action whereby [he] knowingly participated in,
23 acquiesced to, and/or w[]ere deliberately indifferent to the
24 creation and maintenance of a culture permitting or encouraging
25 personnel’s use of unreasonable and excessive force.”
26 In paragraph 34, Plaintiff alleges Harr’s “insufficient
27 training, supervision, or control of [his] personnel, including
28 [Pasley], was a moving force behind and contributed to use of
1 unreasonable and excessive force against Plaintiff [], resulting
2 in his injury” and Harr “knew or should have known that personnel
3 under [his] command, including [Pasley], was inadequately
4 trained, supervised, or disciplined resulting from either the
5 lack of proper training, pursuant to policy or custom, or the
6 result of the lack of policy.”
7 In paragraph 35, Plaintiff alleges Harr’s “policy or custom
8 is demonstrated by [Pasley]’s use of unreasonable and excessive
9 force against [Plaintiff], including: (a) the multiple harms to
10 which [Plaintiff] was subjected, including false arrest /
11 imprisonment, excessive force, retaliation, and disability
12 discrimination; (b) the violation of multiple official policies
13 governing [Pasley]’s conduct including [Gridley Police
14 Department]’s Policy 300 (‘Use of Force’), Policy 340 (‘Standards
15 of Conduct’), Policy 370 (‘Communications with Persons with
16 Disabilities’), and Policy 389 (‘Handcuffing and Restraints’);
17 (c) the cavalier nature with which [Pasley] engaged in misconduct
18 in an open and public place, without concern that it could be
19 observed by others; (d) the impunity with which [Pasley] acted,
20 where multiple officers were present and involved in the
21 misconduct, including a supervisory officer, [‘Doe 1’], who
22 failed to act or intervene.”
23 In paragraph 36, Plaintiff alleges Harr was “aware of
24 several prior incidents of [his] personnel’s use of unreasonable
25 and excessive force, including such use by [Pasley]” but
26 “repeatedly refused or failed to take appropriate corrective
27 action against [Pasley], despite numerous incidents of
28 misconduct.”
1 In paragraph 37, Plaintiff alleges Harr “expressly and
2 impliedly condoned the use of unreasonable and excessive force,
3 emboldening [his] personnel, including [Pasley], to continue to
4 employ unreasonable and excessive force” and “perpetuated the
5 problem by knowingly turning a blind eye to the abuses, ignoring
6 or refusing to investigate complaints of [his] personnel’s
7 misconduct, acquiescing in and implicitly condoning the
8 misconduct by perpetuating a culture of impunity, failing
9 meaningfully to discipline, re-train, or otherwise penalize [his]
10 personnel’s misconduct, failing to hold personnel accountable for
11 violations of law or policies, and creating or fostering an
12 environment where subordinate law enforcement officers believed
13 they could act with impunity and ‘get away with anything.’”
14 These allegations are improperly pled conclusory statements.
15 See Iqbal, 556 U.S. at 679; see also Baca, 652 F.3d at 1208-1209.
16 Indeed, a brief comparison to the allegations in Baca, a case in
17 which the Ninth Circuit found the plaintiff had sufficiently
18 alleged a supervisory liability claim, illustrates the pleading
19 deficiencies here.
20 In Baca, the plaintiff specifically alleged numerous
21 incidents in which inmates in Los Angeles County jails had been
22 killed or injured due to the actions of subordinates of the
23 defendant-supervisor. 652 F.3d at 1216. The Ninth Circuit
24 explained that by making “detailed factual allegations” about the
25 numerous incidents, plaintiff went “well beyond reciting the
26 elements of a claim” and thus plausibly suggested an entitlement
27 to relief against the defendant-supervisor. Id. By contrast,
28 here only one incident –Plaintiff’s arrest - is specifically
1 alleged and supported with facts. The remaining allegations set
2 forth above merely recite the elements of Plaintiff’s claims in
3 conclusory terms. Even the allegation Plaintiff emphasizes in
4 his opposition brief – namely that Harr was aware of “several
5 prior incidents of [his] personnel’s use of unreasonable and
6 excessive force, including such use by [Officer Pasley]” – is
7 unsupported with facts. Opp’n at 4. Unlike Baca where the
8 plaintiff specifically identified prior incidents of use of
9 excessive force and provided factual details about those
10 incidents, here Plaintiff does not identify the “several prior
11 incidents” of which he claims Harr was aware. Nor does Plaintiff
12 plead facts about these other incidents. Although Plaintiff
13 complains that he cannot be expected to provide additional
14 factual detail at this stage, see Opp’n at 4-5, Baca itself
15 provides a clear roadmap of what is required.
16 Because the complaint does not contain sufficient facts to
17 plausibly allege a causal connection between Harr’s conduct and
18 the violation of Plaintiff’s rights, his second and seventh
19 excessive force claims are dismissed without prejudice.
20 b. Eighth Claim: Bane Act
21 Harr also seeks to dismiss Plaintiff’s eighth claim for
22 violation of the Bane Act, arguing Plaintiff has not alleged
23 Chief Harr had a specific intent to violate Plaintiff’s rights as
24 required to state a claim under Reese v. Cty. of Sacramento, 888
25 F.3d 1030, 1043 (9th Cir. 2018). Mot. at 6; Reply at 4. In
26 opposition, Plaintiff acknowledges that to state a claim under
27 the Bane Act, he must allege that Harr acted with a specific
28 intent to violate his rights. Opp’n at 7. Plaintiff, however,
1 disputes what is required to properly allege specific intent.
2 Specifically, Plaintiff contends he does not have to allege that
3 Chief Harr contemporaneously interacted with or knew of Plaintiff
4 at the time he was harmed. Id. Rather, he argues, the specific
5 intent standard requires only “evidence of recklessness” or
6 “deliberate indifference” and under this standard, his
7 allegations suffice. Id. In support of this contention,
8 Plaintiff relies on Rodriguez v. Cty. of Los Angeles, 891 F.3d
9 776 (9th Cir. 2018). Opp’n at 8.
10 Rodriguez, also a Section 1983 excessive force action,
11 involved the cell extractions of five prisoners in a Los Angeles
12 County jail. 891 F.3d at 784. As relevant here, the plaintiff-
13 inmates asserted a claim against the officers who carried out the
14 cell extractions and their supervisors. Id. at 798. One of the
15 supervisors who did not observe the extractions sought to avoid
16 liability based on lack of personal involvement. Id. at 798-799.
17 The Ninth Circuit rejected this particular supervisor’s argument,
18 explaining the supervisor could be held liable for “knowingly
19 participat[ing] in creating and maintaining a culture of impunity
20 for officers’ use of unconstitutionally excessive force” and for
21 “disabling or failing to follow procedures used to identify uses
22 of excessive force [and] ensuring that violators escaped
23 punishment” thereby “creat[ing] an environment where the
24 mechanisms for supervision and control over the use of force
25 operated ineffectively and sometimes not at all.” Id. at 799.
26 However, the Court agrees with Harr that Rodriguez is readily
27 distinguishable because that case involved at least five separate
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1 uses of force in the cell extractions, whereas here only a single
2 instance of use of force has been alleged. Reply at 4.
3 Furthermore, the Court finds that Plaintiff has not alleged
4 facts from which it could plausibly find that Harr had a specific
5 intent to violate his rights. Plaintiff’s allegation that
6 Officer Pasley used force on one occasion while effectuating
7 Plaintiff’s arrest taken together with the allegation that Chief
8 Harr was Pasley’s supervisor simply do not permit the Court to
9 infer that Harr “knowingly participat[ed] in creating and
10 maintaining a culture of impunity for officers’ use of
11 unconstitutionally excessive force” or that Harr was reckless or
12 deliberately indifferent in any other way. Rodriguez, 891 F.3d
13 at 799.
14 Because Plaintiff has not plausibly alleged specific intent,
15 he fails to state a claim under the Bane Act. His eighth claim
16 is therefore dismissed without prejudice.
17 c. Tenth, Eleventh, and Twelfth Claims
18 Finally, Harr moves to dismiss Plaintiff’s tenth, eleventh,
19 and twelfth claims for assault/battery, IIED, and negligence
20 respectively. Mot. at 6-7; Reply at 5-6. The parties again
21 dispute whether the allegations set forth in paragraphs 33
22 through 37 of the complaint are sufficient to support the claims
23 against Harr. Opp’n at 8-10; Reply at 5-6. As discussed above,
24 the Court finds the allegations set forth in those paragraphs to
25 be improperly pled conclusory statements warranting dismissal.
26 In an attempt to save these claims, however, Plaintiff
27 advances a few additional arguments. Opp’n at 8-10. First,
28 Plaintiff responds to Harr’s argument that he is entitled to
1 discretionary immunity pursuant to California Government Code
2 Section 820.8, see Mot. at 7, by again pointing to the language
3 in Section 820.8 providing: “n]othing . . . exonerates a public
4 employee from liability for injury proximately caused by his own
5 negligent or wrongful act or omission.” Opp’n at 8. As such,
6 Plaintiff contends Harr can be held liable for his actions and
7 inactions that aided and abetted Officer Pasley’s battery against
8 Plaintiff. Id. Defendant counters that even if Harr could be
9 held liable for aiding and abetting the violation of Plaintiff’s
10 rights, here Plaintiff has not identified any facts to support
11 his bare allegation that Harr did in fact aid, abet or encourage
12 his subordinates. Reply at 5. The Court agrees. Without any
13 factual support, these conclusory allegations are insufficient to
14 state a battery claim against Chief Harr.
15 Second, Plaintiff cites to a handful of cases for the
16 proposition that whether Harr’s actions were sufficiently
17 outrageous to state an IIED claim is ultimately a question of
18 fact. Opp’n at 9 (collecting cases). But whether or not the
19 outrageousness of Harr’s conduct is ultimately a question of fact
20 does not bear on the question presently before the Court: namely
21 whether Plaintiffs has pled sufficient facts to plausibly state
22 an IIED claim against Harr. See Iqbal, 556 U.S. at 678. Here,
23 Plaintiff has not.
24 Lastly, in support of his negligence claim, Plaintiff cites
25 to a string of cases for the proposition that Chief Harr may be
26 held liable for “his own actions as supervisor[], including [his]
27 alleged negligence in training, developing processes, supervising
28 staff, and disciplining staff for failures to comply with the
1 adopted policies.” Opp’n at 10 (collecting cases). However,
2 this general proposition does not save his claim because again he
3 has failed to plead sufficient factual matter.
4 Accordingly, Plaintiff’s tenth, eleventh, and twelfth claims
5 are dismissed without prejudice.
6 Til. ORDER
7 For the reasons set forth above, the Court GRANTS
8 Defendants’ Motion to Dismiss. If Plaintiff elects to amend his
9 complaint, he shall file a First Amended Complaint within twenty
10 days (20) of this order. Defendants’ responsive pleading is due
11 twenty days thereafter.
12 IT IS SO ORDERED.
13 | Dated: May 14, 2021
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