Regan v. City of Fresno

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JENNIFER REGAN, Case No.: 1:23-cv-00828 JLT SKO

12 Plaintiff, ORDER GRANTING MOTION TO DIMISS

WITH LEAVE TO AMEND

13 v.

(Doc. 29)

14 CITY OF FRESNO, FRESNO POLICE

DEPARTMENT, OFFICER ART

15 DELEON, OFFICER LINDSAY DOZIER, 45 Day Deadline

OFFICER TERRY COOPER, OFFICER

16 MATTHEW BRANDT, OFFICER

DANIEL CORONA, OFFICER TY

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MCFADDEN and DOES 1 through 50,

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Defendant.

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I. BACKGROUND

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Jennifer Regan alleges that Defendants, the City of Fresno (City), its Police Department

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(FPD), and several of its sworn peace officers, failed to protect her from her abusive ex-

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boyfriend, Mario Colombo, despite her numerous communications with Defendants in which she

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relayed, among other things, that he was threatening to shoot her. (Doc. 1.)1

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In the early months of 2021, Colombo was arrested for threatening Plaintiff’s life and was

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issued a criminal protective order (CPO) to cease all contact with Plaintiff and to stay away from

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Plaintiff’s person, home, work, and family. (Id., ¶¶ 31–35.) The situation continued to escalate,

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28 1 The facts described in Plaintiff’s complaint are presumed true for purposes of evaluating the pending motion to

1 with Colombo showing up near Plaintiff’s home and eventually leaving live ammunition on her

2 doorstep. (Id., ¶¶ 41–46.) Despite Plaintiff’s repeated calls to Defendants about her concerns,

3 Plaintiff claims that Defendants responded largely with inaction and by giving conflicting and

4 confusing advice. (See id., ¶¶ 40, 46, 48–50.)

5 In late June and early July 2021, Colombo left Plaintiff threatening voicemail messages,

6 which Plaintiff reported to police. (Doc. 1, ¶¶ 53, 58.) On July 7, 2021, Plaintiff told Defendant

7 Officer Terry Cooper that she received a call from Colombo’s ex-girlfriend, who indicated that

8 Colombo had been burning bridges with all his friends and that he had stolen a gun with the

9 specific intent to use it to kill Plaintiff. (Id., ¶ 62.) Plaintiff provided Officer Cooper a

10 corroborating text message. (Id., ¶ 63.) Officer Cooper indicated to Plaintiff that she was “going

11 to send detectives to arrest Colombo right away,” which Plaintiff alleges gave her “a confusing

12 and inconsistent sense of security.” (Id., ¶ 64.) However, Plaintiff alleges that Officer Cooper did

13 not in fact do anything to arrest or thwart Colombo. (Id., ¶ 65.)

14 On July 9, 2021, with the assistance of another person, Colombo ambushed Plaintiff at a

15 red light, shooting her twice in the upper body. Plaintiff subsequently crashed into another vehicle

16 at Herndon Ave. and N. First Street due to her injuries. (Doc. 1, ¶ 17.) Plaintiff was shot through

17 the neck, which severed her spinal cord. (Id., ¶ 18.) She survived the shooting. (Id., ¶ 19.) As of

18 the date the Complaint in this case was filed, Plaintiff was living with quadriplegia and is

19 “entirely dependent on others for all activities of daily living including feeding, bathing, dressing,

20 and using the bathroom.” (Id.)

21 Plaintiff filed this federal civil rights lawsuit against the City, FPD, and FPD Officers Art

22 Deleon, Lindsay Dozier, Terry Cooper, Matthew Brandt, Daniel Corona, and Ty Mcfadden. (Doc.

23 1.) She alleges all Defendants violated her Fourteenth Amendment substantive due process rights

24 under the state-created danger doctrine. (Id., ¶¶ 93-108.) She also advances a failure to train claim

25 against the City and FPD, pointing to their “systematic disregard for domestic violence and CPO

26 violations, failure to act with urgency or take necessary protective measures, failure to arrest the

27 perpetrator despite clear violations of the CPO and placing the burden on the victim to initiate

28 substantive police action reveal a pervasive failure to train, supervise, and correct the offending

1 behavior within the Fresno Police Department.” (Id., ¶¶ 109–129.)

2 Defendants move to dismiss both claims. (Doc. 29.)2 Plaintiff does not oppose dismissal

3 of the failure to train claim, so that motion is GRANTED. Plaintiff does oppose dismissal of her

4 state created danger claim, (Doc. 31), and Defendants filed a reply. (Doc. 32.) For the reasons set

5 forth below, the Court will grant the motion to dismiss the state created danger claim with leave

6 to amend because the facts as alleged do not support this cause of action under these

7 circumstances.

8 II. LEGAL STANDARDS

9 A Rule 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block, 250

10 F.3d 729, 732 (9th Cir. 2001). In ruling on a motion to dismiss filed pursuant to Rule 12(b), the

11 Court “may generally consider only allegations contained in the pleadings, exhibits attached to

12 the complaint, and matters properly subject to judicial notice.” Outdoor Media Grp., Inc. v. City

13 of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).

14 Dismissal of a claim under Rule 12(b)(6) is appropriate when “the complaint lacks a

15 cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v.

16 Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Thus, “[t]o survive a motion to

17 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

18 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

19 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court explained,

20 A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

21 defendant is liable for the misconduct alleged. The plausibility

standard is not akin to a “probability requirement,” but it asks for

22 more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are “merely consistent with” a

23 defendant’s liability, it “stops short of the line between possibility

and plausibility of ‘entitlement to relief.’”

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25 Iqbal, 556 U.S. at 678 (internal citations omitted).

26 When considering a motion to dismiss, the Court must accept the factual allegations made

27 in the complaint as true. Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976). A court

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1 must construe the pleading in the light most favorable to the plaintiffs and resolve all doubts in

2 favor of the plaintiffs. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legal

3 conclusions need not be taken as true when “cast in the form of factual allegations.” Ileto v.

4 Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).

5 To the extent pleadings can be cured by the plaintiff alleging additional facts, leave to

6 amend should be granted. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d

7 242, 247 (9th Cir. 1990) (citations omitted).

8 III. DISCUSSION

9 The Due Process Clause of the Fourteenth Amendment is “a limitation on state action and

10 is not a ‘guarantee of certain minimal levels of safety and security.’” Martinez v. City of Clovis,

11 943 F.3d 1260, 1271 (9th Cir. 2019) (quoting DeShaney v. Winnebago Cnty. Dep’t of Social

12 Servs., 489 U.S. 189, 195 (1989)).

13 Simply failing to prevent acts of a private party is insufficient to

establish liability. The general rule is that a state is not liable for its

14 omissions and the Due Process Clause does not impose a duty on the

state to protect individuals from third parties.

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There are two exceptions to this general rule. First, a special

16 relationship between the plaintiff and the state may give rise to a

constitutional duty to protect. Second, the state may be

17 constitutionally required to protect a plaintiff that it affirmatively

places . . . in danger by acting with deliberate indifference to a known

18 or obvious danger.

19 Id. (internal quotations and citations omitted)

20 The seminal state-created danger case, DeShaney, 489 U.S. at 191, held that social

21 workers and local officials were not liable under § 1983 on a failure-to-act theory for injuries

22 inflicted on a child by his father. Though the defendants received complaints that the child was

23 abused by his father, they failed to remove the child from his father’s custody. Id. The Supreme

24 Court reasoned that “[w]hile the State may have been aware of the dangers that [the child] faced

25 in the free world, it played no part in their creation, nor did it do anything to render him any more

26 vulnerable to them.” Id. at 201 (emphasis added). The Court acknowledged that the state had

27 previously taken temporary custody of the child and then returned him to his father, but found

28 that this “placed [the child] in no worse position than that in which he would have been had it not

1 acted at all[.]” Id. “Given that the state actors did not create or enhance any danger to the child,

2 the state did not have a constitutional duty to protect him from the private violence inflicted by

3 his father.” Murguia v. Langdon, 61 F.4th 1096, 1110 (9th Cir. 2023) (citing DeShaney, 489 U.S.

4 at 201).

5 The Ninth Circuit “ha[s] interpreted DeShaney to mean that if affirmative conduct on the

6 part of a state actor places a plaintiff in danger, and the officer acts in deliberate indifference to

7 that plaintiff’s safety, a claim arises under § 1983.” Id. (internal quotation omitted). The Ninth

8 Circuit’s summary of the doctrine in Murguia concisely explains the controlling standards:

9 The state-created danger exception has two requirements. “First, the

exception applies only where there is ‘affirmative conduct on the part

10 of the state in placing the plaintiff in danger.’ Second, the exception

applies only where the state acts with ‘deliberate indifference’ to a

11 ‘known or obvious danger.’” [Patel v. Kent sch. Dist., 648 F.3d 965,

974 (9th Cir. 2011)] (internal citation omitted) (quoting Munger v.

12 City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000)

and then quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)).

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To satisfy the first requirement, a plaintiff “must show that the

14 officers’ affirmative actions created or exposed [him] to an actual,

particularized danger that [he] would not otherwise have faced.”

15 Martinez, 93 F.3d at 1271. “In examining whether an officer

affirmatively places an individual in danger, we do not look solely to

16 the agency of the individual, nor do we rest our opinion on what

options may or may not have been available to the individual.

17 Instead, we examine whether the officers left the person in a situation

that was more dangerous than the one in which they found him.”

18 Munger, 227 F.3d at 1086. “The critical distinction is not . . . an

indeterminate line between danger creation and enhancement, but

19 rather the stark one between state action and inaction in placing an

individual at risk.” [Penilla v. City of Huntington Park, 115 F.3d 707,

20 710 (9th Cir. 1997)]. Furthermore, the plaintiff’s ultimate injury must

have been foreseeable to the defendant. Martinez, 943 F.3d at 1273.

21 “This does not mean that the exact injury must be foreseeable.

Rather, ‘the state actor is liable for creating the foreseeable danger of

22 injury given the particular circumstances.’” Id. at 1273–74 (quoting

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1064 n.5 (9th Cir.

23 2006)).

24 As to the second requirement, “Deliberate indifference is ‘a stringent

standard of fault, requiring proof that a municipal actor disregarded

25 a known or obvious consequence of his action.’” Patel, 648 F.3d at

974 (Bryan Cnty v. Brown, 520 U.S. 397, 410 (1997)). This standard

26 is higher than gross negligence and requires a culpable mental state.

Id. at 974. When assessing non-detainee failure-to-protect claims, we

27 apply a purely subjective deliberate indifference test. Herrera v. L.A.

Unified Sch. Dist., 18 F.4th 1156, 1161 (9th Cir. 2021). “For a

28 defendant to act with deliberate indifference, he must ‘recognize[ ]

1 the unreasonable risk and actually intend[ ] to expose the plaintiff to

such risks without regard to the consequences to the plaintiff.’” Id. at

2 1158 (quoting Grubbs, 92 F.3d at 899). In other words, the state actor

must “know[ ] that something is going to happen but ignore[ ] the

3 risk and expose[ ] [the plaintiff] to it.” Grubbs, 92 F.3d at 900

(emphasis in original). “The deliberate-indifference inquiry should

4 go to the jury if any rational factfinder could find this requisite mental

state.” Patel, 648 F.3d at 974.

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6 61 F.4th at 1111.

7 Here, the primary Defense argument is that Plaintiff has failed to allege a sufficient

8 affirmative act. The Ninth Circuit has applied the state-created danger doctrine in several cases

9 that are instructive here. In Kennedy v. City of Ridgefield, 439 F.3d 1055, 1057 (9th Cir. 2006),

10 Kimberly Kennedy called the police to report that a young neighbor had molested her daughter.

11 Kennedy warned police that the neighbor had violent tendencies. Id. The investigating officer

12 assured Kennedy that she would be given notice prior to any police contact with the alleged

13 abuser or his family. Id. at 1058. Later that month, rather than giving Kennedy the promised prior

14 notice, the officer interviewed the alleged abuser’s mother and informed her of the Kennedy’s

15 allegations. Id. Then, after that interview was conducted, the officer told Kennedy that the other

16 mother now had knowledge of the molestation allegations. Id. Kennedy expressed fear for her

17 safety. Id. The officer assured Kennedy that police would patrol the area around her house and the

18 accused abuser’s house to “keep an eye” on the situation. Id. Though the family immediately

19 made plans to leave town the next day, the alleged abuser broke into the Kennedy’s home

20 overnight and shot both the Kennedy parents while they slept. Id.

21 The Ninth Circuit concluded that the officer “affirmatively created a danger” to the

22 Kennedy family by informing the abuser’s family before the Kennedy family had the opportunity

23 to protect themselves. 439 F.3d at 1063. This created an opportunity for the abuser to assault the

24 Kennedys “that otherwise would not have existed.” Id. In addition, the Ninth Circuit noted that

25 the officer had assured the Kennedys that, given the threat posed, they would patrol the

26 neighborhood that night. Id. Though the Ninth Circuit “[did] not rest [the] judgment that [the

27 officer] affirmatively created a danger on that assurance alone, [ ] in light of it, it is quite

28 reasonable that the Kennedys decided late that night . . . to remain at home” instead of leaving

1 immediately. Id. Therefore, the officer’s “misrepresentation as to the risk the Kennedy’s faced

2 was an additional and aggravating factor, making them more vulnerable to the danger he had

3 already created.” Id.

4 Martinez, 943 F.3d 1260, provides additional definition to these rules in the domestic

5 violence context. Martinez, a victim of repeated sexual and physical abuse at the hands of her

6 one-time boyfriend, sued several officers and municipal entities under the state-created danger

7 doctrine. Id. at 1266–70. She advanced several allegations that were found insufficient to trigger

8 the state created danger doctrine. For example, she alleged that one officer “placed her in greater

9 danger by failing to inform her of her rights or options, failing to provide her with [a police]

10 handout for domestic violence victims, and failing to make an arrest.” Id. at 1272. Though “these

11 failures may have been a dereliction of [the officer’s] duties, they were not an affirmative act that

12 created an actual, particularized danger.” Id. (internal quotation and citation omitted). Another

13 officer “failed to separate [plaintiff] from [her abuser] when conducting [an] interview, . . . did

14 not provide [plaintiff] with information that may have allowed her to escape further abuse, and

15 did not issue an emergency protective order.” Id. These allegations were also insufficient because

16 “Martinez was left in the same position she would have been in had [the officer] not acted at all.”

17 Id. However, one officer told Martinez’s alleged abuser about her allegations and stated that she

18 was not “the right girl” for Martinez. Id. The Ninth Circuit concluded that a reasonable jury could

19 have found that the officer’s disclosures provoked the abuser, and that the officer’s disparaging

20 comments about the plaintiff emboldened the abuser to believe he could further harm plaintiff

21 with impunity. Id.;3 see also Okin v. Village of Cornwall-On-Hudson Police Dept., 577 F.3d 415,

22 430–31 (2d Cir. 2009) (holding that officers who “openly expressed camaraderie with [an abuser]

23 and contempt for [the victim]” increased the danger to the victim)4.

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3 The Ninth Circuit recently held that another officer involved in the Martinez domestic abuse investigation and who

25 engaged in similar conduct was nonetheless shielded by the doctrine of qualified immunity because the case law in

existence at the time of the relevant conduct did not make it clear that such conduct would violate the constitution.

26 Martinez v. High, 91 F.4th 1022, 1030–31 (9th Cir. 2024).

27 4 Plaintiff relies on Okin for the proposition that a failure to protect claim may arise when law enforcement officers

demonstrate a “dismissive” attitude toward domestic abuse allegations. (See Doc. 31 at 5.) However, the Ninth

28 Circuit acknowledged in Martinez that Okin had not been “embraced by a consensus of courts,” and may be “in

1 One case not mentioned by either party is Henderson v. County of Santa Cruz, 2015 WL

2 225429, *1 (N.D. Cal. Jan. 16, 2015). There, James, a mentally ill inmate confined to a county

3 jail threatened his parents while in confinement. Id. The parents allegedly received assurances

4 from the county that they would be warned before the inmate was released. Id. They were not

5 warned, however, and James murdered his parents within several months of his release. Id.

6 Viewing the facts in the light most favorable to the deceased parents, the district court concluded

7 that the complaint sufficiently alleged that the county’s conduct exposed the parents “to a danger

8 they would not have otherwise faced.”

9 Specifically, because the Hendersons were not warned that James

was released, or that he was released into homelessness, they “did

10 not call upon other law enforcement authorities or resources to

ensure their safety upon James’ release.” Although the County

11 argues that the Hendersons knew of James's violent threats, and knew

that he would be released eventually, the Hendersons did not know

12 James would be released into unsupervised homelessness and may

have taken additional steps to protect themselves. Thus, had the

13 County done nothing–made no representations to the Hendersons—

they would have faced the danger of James being released and

14 surprising them without any warning. Based on the actions of the

County—assuring the Hendersons that they would be notified of

15 James’s release—the Hendersons believed they faced a much []

different risk, and did not prepare themselves for the risk they

16 actually faced.

17 Id. at *5. Though “a mere failure to warn of a danger is not a sufficient state act, as it is not

18 affirmative conduct,” the Hendersons “alleged affirmative conduct on the part of the County

19 when the County made a promise to warn the Hendersons and then released James into

20 homelessness.” Id. Those allegations “align[ed]” the case with Kennedy, “where a failure to warn

21 arguably placed plaintiffs in a more dangerous situation than the family previously faced.” Id.

22 (citing Kennedy, 439 F.3d at 1063).

23 One district court has reasoned that Kennedy and Henderson “teach that actionable danger

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25 officers in Martinez were granted qualified immunity due to the “muddled” nature of the law as of 2019, going

forward the Ninth Circuit held “that the state-created danger doctrine applies when an officer reveals a domestic

26 violence complaint made in confidence to an abuser while simultaneously making disparaging comments about the

victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity.” Id. In

27 addition, the Ninth Circuit held “that the state-created danger doctrine applies when an officer praises an abuser in

the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser

28 that the abuser may continue abusing the victim with impunity.” Id. Notably, the Complaint in this case does not

1 created by the state’s failure to warn requires affirmative assurances by the state that are later

2 reneged.” Coats v. City of Los Alamitos, No. 8:18-CV-01161 JLS DFM, 2019 WL 6903833, at *6

3 (C.D. Cal. Aug. 2, 2019) (distinguishing Henderson because the state actor did not promise to

4 apprise the victims of a third-party threat). However, other district courts have emphasized that

5 such assurances cannot make out a claim on their own. Id. This was the case in Kennedy, where,

6 as discussed above, the promise of police patrols amounted to a “misrepresentation as to the risk

7 the Kennedy’s faced,” which was an “additional and aggravating factor, making them more

8 vulnerable to the danger [the officer] had already created.” 439 F.3d at 1063.

9 Cushman v. City of Troutdale, No. CIV. 07-0012-HU, 2009 WL 890505 (D. Or. Mar. 30,

10 2009), provides some additional perspective. There, the plaintiff, Cushman, was dating Ramirez,

11 who was on probation after a prior domestic abuse conviction. Id. at *1. Ramirez struck Cushman

12 and she went to the police and indicated she wanted to press charges. Id. According to Cushman,

13 the investigating officer, Leake, promised to contact Ramirez’s probation officer. Id. at *4. It was

14 unclear whether the officer did so before he left on an extended vacation without telling Plaintiff.

15 Id. at *1 While the officer was away, Ramirez attacked Cushman with a knife, seriously injuring

16 her. Id. Cushman argued that the officer’s promise to inform Ramirez’s probation officer was

17 akin to the promise to pre-warn the Kennedys of any conversation with the abuser’s family,

18 “thereby creating the same false sense of security.” 2009 WL 890505, at *4. The Cushman court

19 did not agree because, unlike in Kennedy where the officer affirmatively created a danger by

20 notifying the alleged abuser’s family of the allegations against him, the state did not create the

21 danger faced by Cushman.

22 Consistent with Kennedy, other Ninth Circuit courts have required

proof that the state actor created the danger. See Munger v. City of

23 Glasgow, 227 F.3d 1082 (9th Cir. 2000) (holding police officers

could be held liable for the death from hypothermia of a visibly drunk

24 patron they had ejected from a bar on an extremely cold night);

Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997)

25 (holding as viable a state-created danger claim against police officers

who, after finding a man in grave need of medical care, cancelled a

26 request for paramedics and locked him inside his house); L.W. v.

Grubbs, 974 F.2d 119 (9th Cir. 1992) (holding state employees could

27 be liable for the rape of a registered nurse assigned to work alone

with a known, violent sex-offender); Wood v. Ostrander, 879 F.2d

28 583 (9th Cir. 1989) (holding state could be liable for the rape of a

1 woman that an officer had left stranded in a known high-crime area

late at night).

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In every case involving state-created danger, the state actor played a

3 significant role in creating the dangerous situation: whether by

revealing the plaintiff’s allegations to the neighbor in Kennedy,

4 ejecting the drunk patron from a bar in Munger, dragging the injured

man inside his house in Penilla, assigning the nurse to work alone

5 with a known sex-offender in Grubbs, or stranding a woman in a

dangerous area in Wood. Leake’s supposed affirmative acts fall far

6 short of this standard. Construing the facts in the light most favorable

to plaintiff, Leake is guilty of the following: assuring plaintiff that he

7 would call Montgomery, telling plaintiff she did not need to call

Montgomery, failing to contact Montgomery, not running a

8 background check on Ramirez, telling plaintiff to investigate areas

she thought Ramirez might visit and report his whereabouts, and

9 going on vacation without telling plaintiff or changing his answering

machine message.

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There is no evidence that plaintiff’s injuries were caused by forces

11 that Leake set in motion. Unlike the officer in Kennedy, who created

a dangerous situation by revealing the plaintiff’s accusations to her

12 neighbor, Leake’s conduct did not create a danger that plaintiff did

not already face. Rather, the record clearly indicates that Ramirez—

13 high on methamphetamine and with a history of domestic violence—

independently decided to attack plaintiff on October 8, 2005.

14 Although Leake may have been able to prevent plaintiff’s injuries,

by either contacting Montgomery or otherwise helping to take

15 Ramirez into custody, Leake’s alleged negligence did not create a

danger that did not previously exist. Because plaintiff has not shown

16 an affirmative conduct that created a danger, plaintiff cannot

establish a due process claim.

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18 Id. at *5. Coates recognized there is “tension” between Cushman and Henderson, but declined to

19 resolve that tension, finding that Coats had not alleged a relevant promise or assurance. See

20 Coats, 2019 WL 6903833, at *7 n.7.

21 Here, Plaintiff alleges that two days before the shooting, Officer Cooper promised to

22 arrest Columbo “right away,” but ultimately failed to take steps to do so. (Doc. 1, ¶¶ 64–65.) This

23 conduct resembles the conduct in Henderson in some respects because Cooper’s alleged promise

24 could have caused Plaintiff to believe the risk Columbo posed to her had been abated. However,

25 Henderson is at least arguably distinguishable. There, the county defendants took the affirmative

26 step of releasing James into the community. That, coupled with their failure to warn the parents

27 arguably amounted to an affirmative act akin to the act(s) at issue in Kennedy. Id. Here, by

28 contrast, Cooper’s failure to arrest Columbo as promised did nothing to create the danger posed to

1 Plaintiff by Columbo. This brings the present case much closer to the facts of Cushman, where

2 the officer’s failure to contact the abuser’s probation officer was not affirmative conduct that

3 created a danger.

4 Plaintiff’s other allegations do not meet the threshold either. She argues generally that she

5 has alleged “a series of omissions and lack of intervention that created a dangerous situation for

6 the Plaintiff.” (Doc. 31 at 4.)5 Indeed Plaintiff has alleged that Defendants provided her with false

7 promises of protection by repeatedly giving her victim’s rights handouts and related paperwork

8 which “promised” her protection from abuse. (Doc. 1, ¶ 100.) She also alleges that Defendants

9 promised to “consider her and her family’s safety when releasing Columbo from custody, and to

10 inform her about Columbo’s release.” (Id., ¶ 100.) These allegations do not amount to affirmative

11 conduct that created any danger.

12 The Court notes that the Complaint contains confusing allegations regarding the possible

13 confiscation of Columbo’s registered firearms by police. Plaintiff alleges that on June 23, 2021,

14 “Officer[s] Brandt and McFadden confirmed through records check that Colombo had registered

15 firearms, and that there was a valid CPO which Colombo was in violation of.” (Doc. 1, ¶ 55.)

16 Apparently, Columbo also left an angry voicemail for Plaintiff on June 23, 2021 indicating,

17 among other things, that “the cops took my guns.” (Id., ¶ 53.) According to Plaintiff, “Colombo was

18 a well-known, strong proponent of his Second Amendment rights. His public Facebook account made

19 it clear that he viewed any intrusion on his Second Amendment as a violent and personal attack

20 against him for which he would take revenge for. Colombo believed Plaintiff was to blame if his guns

21 were taken away.” (Id., ¶ 54.) Elsewhere, however, the Complaint appears to acknowledge that

22 Columbo’s weapons were not actually confiscated. (Id., ¶ 55 (“It was unclear whether law

23 enforcement had in fact taken Colombo’s guns away, but it appears not.”).) To the extent Plaintiff is

24 suggesting that the confiscation of Columbo’s weapons, or possibly just the threat of that confiscation,

25 satisfies the affirmative act requirement as that requirement is set forth in Martinez, the Court believes

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27 5 Perhaps recognizing that these allegations do not match the relevant standard, she also attempts to re-shape the

holding of Kennedy as follows: “a state actor can be held liable if they failed to protect a plaintiff, after promising to

28 do so, where there were already known threats from a third party.” (Doc. 31 at 4.) As discussed in detail above, this is

een eee eee on nn nen nn en on nn nnn ne nn nn nnn nn ne ns NS

1 | the present allegations are insufficient, as the role of the police in any confiscation effort remains

2 | unclear, even viewing the facts in the light most favorable to Plaintiff. However, because the

3 | deficiencies outlined herein may be curable by the allegation of additional facts, the Court will

4 | permit the filing of an amended complaint. Plaintiff is cautioned, however, to read this ruling

5 | carefully. Particularly considering the elimination of the Monell claim, Plaintiff must take care to

6 || examine the conduct of each responding officer and only name in any amended complaint those

7 | officers as defendants whose own conduct plausibly amounts to a constitutional violation.

8 IV. CONCLUSION AND ORDER

9 For the reasons set forth above:

10 (1) The motion to dismiss (Doc. 29) is GRANTED WITH LEAVE TO AMEND.

11 (2) Plaintiff shall have 45 days to file any amended complaint or a notice that she will not

12 be amending the complaint. Failure to timely file an amendment or notice of non-amendment

13 may result in the Court sua sponte dismissing the action without further notice.

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1s IT IS SO ORDERED.

6 Dated: _ April 18, 2024 Charis [Tourn

TED STATES DISTRICT JUDGE

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