# (PS) Kershner v. Eagan

> District Court, E.D. California · September 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10030428

## Case

- **Court:** District Court, E.D. California
- **Decided:** September 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

1
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5
6 UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA
8
9 CHRISTOPHER KERSHNER, No. 2:20-cv-01047-JAM-DB
10 Plaintiff,
11 v. ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS
12 JOSHUA EAGAN, Police Officer for
the City of Auburn, et al.,
13
Defendants.
14
15 Christopher Kershner (“Plaintiff” or “Kershner”) sued Police
16 Officers Joshua Eagan, Philip Isetta, Angela McCollough, and Ryan
17 Kinnan, as well as the City of Auburn and 50 unnamed Does
18 (“Defendants”), alleging wrongful arrest and seizure of his
19 prescription medication in violation of his Fourth and Eighth
20 Amendment rights under U.S.C. § 1983. See First Am. Compl.
21 (“FAC”), ECF No. 4. Plaintiff also brought superior liability
22 and Monell claims. Id.
23 Defendants move to dismiss: (1) Plaintiff’s first § 1983
24 claim insofar as it alleges wrongful seizure of prescription
25 medication under the Fourth Amendment; (2) Plaintiff’s second
26 § 1983 claim under the Eighth Amendment; (3) Plaintiff’s superior
27 liability claim against Defendant McCollough; and (4) Plaintiff’s
28 Monell claim. See Mot. to Dismiss (“Mot.”), ECF No. 5.
1 Defendants also seek to strike Paragraph 22 from the FAC and to
2 dismiss Plaintiff’s prayer for punitive damages and prayer for
3 injunctive relief. Id. Plaintiff opposes the motion. See
4 Opp’n, ECF No. 6. Defendants replied. See Reply, ECF No. 7.
5 For the reasons set forth below, the Court GRANTS Defendants’
6 motion to dismiss.1
7
8 I. BACKGROUND
9 Kershner, who is currently on probation, aspires to run for
10 Placer County Supervisor. FAC ¶¶ 7, 19. On June 22, 2019, while
11 celebrating a birthday at a local bar, Kershner was approached by
12 Auburn Police Officers Eagan and Isetta who informed him he was
13 violating the terms of his probation by drinking alcohol and
14 being at a venue that sold it. Id. ¶ 5. Kershner told the
15 officers that they were mistaken and that he was in compliance
16 with his probation terms, as a judge had recently granted him a
17 modification that allowed him to do both. Id. ¶¶ 8,10. The
18 officers still proceeded to arrest and search Kershner. Finding
19 medication on his person, they confiscated it. Id. ¶¶ 11, 14.
20 Kershner alleges he had a prescription for the confiscated
21 medication and that it was a common, non-narcotic drug. Id.
22 ¶ 11.
23 Kershner was taken to Placer County Jail and booked for
24 violating the terms of his probation. Id. ¶ 15. His bail was
25 set at $10,000.00, which he paid. Id. After he was released
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 August 24, 2021.
1 from custody, Kershner went to the Sutter Auburn Faith Hospital
2 to re-fill his prescription. Id. ¶ 16. Kershner alleges that
3 Defendants refused to return his medication. Id. ¶ 38.
4 The week after his arrest, Kershner received a letter from
5 the Placer County District Attorney’s Office informing him they
6 were declining to file any charges. Id. ¶ 20. Ten months later,
7 Kershner filed this suit. See Compl., ECF No. 1.
8
9 II. OPINION
10 A. Legal Standard
11 Federal Rule of Civil Procedure 8(a)(2) requires “a short
12 and plain statement of the claim showing that the pleader is
13 entitled to relief.” When a plaintiff fails to “state a claim
14 upon which relief can be granted,” the Court must dismiss the
15 suit. Fed. R. Civ. P. 12(b)(6). To defeat a motion to dismiss,
16 a plaintiff must “plead enough facts to state a claim to relief
17 that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
18 550 U.S. 544, 570 (2007). Plausibility under Twombly requires
19 “factual content that allows the Court to draw a reasonable
20 inference that the defendant is liable for the misconduct
21 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
22 “At this stage, the Court ‘must accept as true all of the
23 allegations contained in a complaint.’” Id. But it need not
24 “accept as true a legal conclusion couched as a factual
25 allegation.” Id. Additionally, the Court should grant leave to
26 amend, unless the “pleading could not possibly be cured by the
27 allegation of other facts.” Cooks, Perkiss, & Leiche, Inc. v.
28 N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir.
1 1990).
2 B. Analysis
3 1. Fourth Amendment Claim
4 Defendants move to dismiss Plaintiff’s Fourth Amendment
5 claim for unreasonable seizure of his personal property during
6 his arrest, contending qualified immunity immunizes them from
7 this claim. Mot. at 5.
8 Qualified immunity protects government officials from
9 liability for money damages unless their conduct violates
10 “clearly established” law that a reasonable public official
11 would have known. Pearson v. Callahan, 555 U.S. 223, 231
12 (2009). The inquiry for the Court is two-fold. Saucier v.
13 Katz, 533 U.S. 194, 200 (2001). First, the Court must determine
14 whether the facts alleged, taken in the light most favorable to
15 the plaintiff, constitute a violation of a constitutional right.
16 Id. Second, the Court must determine whether the constitutional
17 right was clearly established at the time of the alleged
18 violation. Id. Answering either of these questions in the
19 negative means the government official(s) are entitled qualified
20 immunity. Id. at 201. A court may address the second prong of
21 the qualified immunity test first if it is clearly dispositive
22 and if doing so would resolve the case efficiently. Pearson,
23 555 U.S. at 242.
24 Turning to the second prong first, the question is whether
25 Plaintiff had a clearly established constitutional right to the
26 return of his seized prescription medication after he was
27 released on bail. The parties dispute this issue. Mot. at 6;
28 Opp’n at 3.
1 Defendants argue it is not clearly established that a
2 failure to return seized medication violates the Fourth
3 Amendment. Mot. at 6. To support their argument, Defendants
4 cite Jessop v. City of Fresno, which held that a “lack of any
5 cases of controlling authority or a consensus of cases of
6 persuasive authority on the constitutional question compels the
7 conclusion that the law was not clearly established at the time
8 of the incident.” 936 F.3d. 937, 942 (internal citations
9 omitted) (9th Cir. 2019). Defendants, in their reply, further
10 assert that the claim should be dismissed because Plaintiff
11 fails to point to any controlling cases demonstrating legal
12 consensus in his favor. See Reply at 2.
13 Plaintiff does not respond to Defendants’ argument in
14 opposition, and, as Defendants point out, he does not provide
15 any controlling authority that compels the Court to conclude he
16 had a clearly established constitutional right. Instead,
17 Plaintiff argues that Defendants are not entitled to qualified
18 immunity because their actions were “intentional and cannot be
19 considered an oversight.” Opp’n at 3. This is insufficient.
20 While evaluating the second prong of the qualified immunity
21 test, the Court “does not require a case directly on
22 point . . . [but] existing precedent must have placed the
23 statutory or constitutional question beyond debate.” Ashcroft
24 v. al-Kidd, 563 U.S. 731, 741 (2011). Here, there is no such
25 case directly on point. Because Plaintiff has not identified a
26 clearly established right, Defendants are entitled to qualified
27 immunity and the Court need not address the first prong of the
28 Saucier test. Accordingly, this claim is dismissed with
1 prejudice given that any further amendment would be futile.
2 Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d 1043, 1049
3 (9th Cir. 2006).
4 2. Eighth Amendment Claim
5 Defendants also move to dismiss Plaintiff’s Eighth
6 Amendment claim in its entirety, arguing among other things that
7 the Plaintiff improperly engaged in shotgun pleading. Mot. at
8 4. However, because the shotgun pleading doctrine is only
9 another way of assessing whether the pleading standard has been
10 met, the Court folds this argument into its discussion below.
11 See Sollberger v. Wachovia Sec., LLC, No. SACV 09-0766 AG (ANx),
12 2010 WL 2674456, *4 (C.D. Cal. June 30, 2010) (stating that
13 “[r]elated to plausibility and particularity is the concept of
14 shotgun pleading”).
15 Here, Plaintiff has failed to state a claim of cruel and
16 unusual punishment under the Eighth Amendment. The Eighth
17 Amendment protects against the infliction of cruel and unusual
18 punishment, but its protections apply only after conviction and
19 sentence. U.S. Const., amend. VIII, § 3; Bell v. Wolfish, 441
20 U.S. 520, 535 (1979); Demery v. Arpaio, 378 F.3d 1020, 1029 (9th
21 Cir. 2004). Plaintiff himself alleges he was never charged or
22 convicted of a crime after his arrest. FAC ¶ 20. Because none
23 of the actions complained of in the FAC occurred after
24 conviction, the plaintiff cannot maintain his Eighth Amendment
25 claim.
26 As for Plaintiff’s excessive bail claim, Defendants
27 rightfully point out that bail amounts are set by the Court in
28 California. Mot. at 5. In instances where the arrestee does
1 not appear before a judge of the court and where there is no
2 warrant of arrest, then “the amount of bail shall be pursuant to
3 the uniform countywide schedule of bail for the county in which
4 the defendant is required to appear.” California Penal Code
5 § 1269b(b). This schedule is prepared, adopted, and annually
6 revised by the superior court judges in each county. Id. at
7 § 1269b(c). Defendants were not, in other words, responsible
8 for setting Plaintiff’s bail.
9 The problem this poses for Plaintiff is one of proving
10 causation, which is a necessary element of a § 1983 claim. See
11 Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir.
12 1996). The 9th Circuit has held that “a judicial officer’s
13 exercise of independent judgement in the course of his official
14 duties is a superseding cause that breaks the chain of causation
15 linking law enforcement personnel to the officer’s decision.”
16 Galen v. County of Los Angeles, 477 F.3d 652, 663 (9th Cir.
17 2007). To survive a motion to dismiss, Plaintiff must therefore
18 allege some action on Defendants’ part that impeded or
19 improperly influenced the judge’s “independent judgement.” Id.
20 The only relevant fact Plaintiff alleged was that “Officer Eagan
21 even taunted Plaintiff with a bail increase . . . because of the
22 prescribed medication.” FAC ¶ 15. Because this fails to give
23 rise to a plausible inference that Defendants caused Plaintiff’s
24 bail to be increased, Plaintiff has failed to state an excessive
25 bail claim against Defendants. Accordingly, Plaintiff’s Eighth
26 Amendment claim is dismissed with prejudice. No further
27 amendment of this claim is permitted as such amendment would be
28 futile. Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d
1 1043, 1049 (9th Cir. 2006).
2 3. Supervisory Liability Claim against Defendant
3 McCollough
4 Defendants move to dismiss Plaintiff’s supervisory
5 liability claim against Defendant McCollough. Mot. at 6. Under
6 § 1983, a supervisory official is not liable for a subordinate’s
7 actions under any theory of vicarious liability. Hansen v.
8 Black, 885 F.2d 642, 645-46 (9th Cir. 1989). A supervisory
9 official may be liable for the acts of a subordinate when there
10 is (1) personal involvement in a constitutional deprivation or
11 (2) if there is a sufficient causal connection between the
12 supervisor’s wrongful conduct and the constitutional violation.
13 Id. A causal connection may be established “by setting into
14 motion a series of acts by others,” or by “knowingly refusing to
15 terminate a series of acts by others, which the supervisor knew
16 or reasonably should have known would cause others to inflict a
17 constitutional injury.” Starr v. Baca, 652 F.3d 1202, 1207-08
18 (9th Cir. 2011) (cleaned up).
19 Defendant contends that Plaintiff has failed to allege
20 sufficient facts to support a claim for supervisory liability.
21 Mot. at 6. Plaintiff alleges only that Defendant McCollough
22 “was the acting supervisor on duty that night on the day of the
23 incident.” FAC ¶ 6. Because Plaintiff fails to allege in the
24 FAC any facts showing personal involvement or any wrongful
25 conduct by Defendant McCollough, Plaintiff fails to state a
26 claim for which relief may be granted under Rule 12(b)6). Thus,
27 this claim is dismissed without prejudice.
28
1 4. Monell Claim
2 Defendant City of Auburn moves to dismiss Plaintiff’s
3 Monell claim because the Plaintiff did not allege sufficient
4 facts to satisfy the pleading requirements. Mot. at 8. Under
5 Monell, municipalities can be sued directly under 42 U.S.C.
6 § 1983 for an unconstitutional custom, policy, or practice.
7 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). To
8 establish municipal liability, “a plaintiff must show (1) he
9 possessed a constitutional right and was deprived of that right,
10 (2) the municipality had a policy, (3) the policy amounts to
11 deliberate indifference to the plaintiff’s constitutional right,
12 and (4) the policy was the moving force behind the
13 constitutional violation.” Sweiha v. Cty. of Alameda, No. 19-
14 CV-03098-LB, 2019 WL 48482227 at *3 (N.D. Cal. Oct. 1, 2019)
15 (citing Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d
16 432, 438 (9th Cir. 1997)).
17 Only one allegation in the FAC even refers to a Monell
18 claim——that “defendant law enforcement officers and the
19 defendant City of Auburn Police department as [sic] the City of
20 Auburn, had a custom and practice of not following established
21 procedures, and engaged in many activities that violated the
22 Plaintiff’s constitutional rights to be free from illegal
23 searches and seizures.” FAC ¶ 13. This allegation is too
24 general to support the existence of an unconstitutional custom
25 of policy, which must be so “persistent and widespread” as to be
26 a “permanent and well settled city policy.” Leon v. Hayward
27 Bldg. Dep't, No. 17-cv-02720-LB, 2017 WL 3232486, at *3 (N.D.
28 Cal. July 31, 2017) (some internal quotation marks omitted)
1 (quoting Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1233 (9th
2 Cir. 2011)). The FAC fails to “put forth additional facts
3 regarding the specific nature of [the] alleged policy, custom,
4 or practice.” AE ex rel. Hernandez v. Cty of Tulare, 666 F.3d
5 631, 637 (9th Cir. 2012). For these reasons, Plaintiff’s Monell
6 claim fails. This Court finds that any further amendment would
7 be futile and dismisses this claim with prejudice. Deveraturda
8 v. Globe Aviation Sec. Servs., 454 F.3d 1043, 1049 (9th Cir.
9 2006).
10 5. Damages and Injunctive Relief
11 Finally, Defendants seek to strike Paragraph 22 and to
12 dismiss Plaintiff’s prayer for punitive damages and prayer for
13 injunctive relief.2 Mot. at 8. Plaintiff does not oppose this
14 request in his opposition and thereby waives this argument. See
15 Resnick v. Hyundai Motor America, Inc., No. CV 16-00593-BRO
16 (PJWx), 2017 WL 1531192 at *22 (C.D. Cal. Apr. 13, 2017)
17 (“Failure to oppose an argument raised in a motion to dismiss
18 constitutes waiver of that argument”).
19 Therefore, the Court strikes Paragraph 22 of the FAC.
20 Additionally, the Court grants Defendants’ motion to dismiss
21 Plaintiff’s prayers for punitive damages and for injunctive
22

23 2 Defendants actually requested the Court strike the prayers for
punitive damages and injunctive relief under Rule 12(f). See
24 Mot. at 9. However, the Ninth Circuit has held this is not
authorized under 12(f) and thus the Court construes this as a
25
request to dismiss under 12(b)(6). See Whittlestone, Inc. v.
Handi-Craft Co., 618 F.3d 970, 971-74 (9th Cir. 2010) (“Rule
26
12(f) of the Federal Rules of Civil Procedure does not authorize
27 a district court to strike a claim for damages on the ground that
such damages are precluded as a matter of law.” Rather this “is
28 better suited for a Rule 12(b)(6) motion.”)
em IIE II ROI ERIE IID EEO EI RO DEI IIE EEE IDR EEE eee

1 relief without leave to amend.
2 IIl. ORDER
3 For the reasons set forth above, the Court GRANTS
4 Defendants’ Motion to Dismiss. The Court:
5 1. GRANTS Defendants’ Motion to Dismiss the claim of
6 unlawful seizure under the Fourth Amendment pursuant to 42 U.S.C.
7 §$ 1983 with prejudice;
8 2, GRANTS Defendants’ Motion to Dismiss the claims of
9 | cruel and unusual punishment and excessive bail under the Eighth
10 | Amendment pursuant to 42 U.S.C. § 1983 with prejudice;
11 3. GRANTS Defendants’ Motion to Dismiss the supervisory
12 liability claim against McCollough with leave to amend;
13 4, GRANTS Defendants’ Motion to Dismiss the Monell claim
14 pursuant to 42 U.S.C. § 1983 with prejudice;
15 5. GRANTS Defendants’ Motion to Strike Paragraph 22 of the
16 FAC; and
17 6. GRANTS Defendants’ Motion to Dismiss Plaintiff's
18 request for punitive damages and injunctive relief with
19 | prejudice.
20 If Plaintiff intends to file an amended supervisory
21 liability claim, he must do so within twenty (20) days of this
22 Order. Defendants’ responsive pleading is due twenty (20) days
23 thereafter. If Plaintiff does not file an amended complaint, the
24 case will proceed on the remaining claims in the FAC.
25 IT IS SO ORDERED.
26 Dated: September 22, 2021
27 kA
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10030428. Public record. Not legal advice.